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State v. Fruitts

Court of Appeals of Oregon

February 14, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
HAROLD A. FRUITTS, Defendant-Appellant.

          Argued and submitted February 9, 2016.

         Union County Circuit Court F19304; A156168 Brian Dretke, Judge.

          Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Tookey, Presiding Judge, and Lagesen, Judge, and DeHoog, Judge.[*]

         [290 Or. 223] Case Summary: Defendant appeals a judgment of conviction for one count of criminally negligent homicide, ORS 163.145, after his vehicle collided with a member of a roadwork crew. Defendant assigns error to the trial court's exclusion as irrelevant of testimony from expert witnesses regarding evidence about the roadwork crew's compliance with safety guidelines. He argues the evidence was relevant to two elements of his charge: (1) whether defendant caused the victim's death within the meaning of ORS 163.145 and ORS 163.005 and (2) whether defendant acted with "criminal negligence" under ORS 161.085 in causing the victim's death. Held: The trial court did not err when it concluded that evidence about the roadwork crew's compliance with safety guidelines was not relevant to the issue of causation; that evidence was not probative of whether defendant's conduct was a "but for" cause of the victim's death. However, the trial court erred by excluding, as irrelevant to the issue of criminal negligence, testimony that addressed whether the warnings that the workers had in fact employed would alert a reasonable driver to the risk that the driver was approaching workers on the roadway. Nevertheless, that error was harmless.

         [290 Or. 224]

          LAGESEN, J.

         Defendant, while driving, collided with a road-worker who was repairing potholes along with a crew of other workers. For that conduct, a jury convicted defendant of one count of criminally negligent homicide, ORS 163.145.[1]Defendant appeals, assigning error to the trial court's exclusion as irrelevant of testimony from two expert witnesses regarding recommended traffic safety guidelines for road-workers, and whether the roadworkers involved with the collision complied with those guidelines, as well as two illustrations depicting what a driver would have seen had the roadworkers deployed the recommended safety measures. Defendant contends that the excluded evidence was relevant to two elements of the charge against him: (1) whether defendant caused the victim's death within the meaning of ORS 163.145 and ORS 163.005, [2] and (2) whether defendant acted with "criminal negligence" under ORS 161.085(10)[3] in causing the victim's death. We review the trial court's rulings on the relevance of the evidence for errors of law, State v. Titus. 328 Or. 475, 481, 982 P.2d 1133 (1999), and for the reasons that follow, affirm.

         [290 Or. 225] I. FACTS AND PROCEDURAL HISTORY

         The facts pertinent to the issues on appeal are not in dispute. Defendant, while driving his girlfriend's SUV, became distracted by the radio and did not look up at the road for about 600 feet, except to check immediately over the dashboard. At the same time, on the road ahead of defendant, a four-man road crew was patching potholes. They worked from a flatbed pickup, hopping out to fix potholes as they drove along. The pickup was marked with a beacon, flashers, and flashing hazard lights, and the workers wore bright vests. All four men on the road crew got out of the vehicle to fix two potholes.

         Defendant did not see the pickup until it was too late to avoid a collision. When he saw the crew diving out of the way of his vehicle, defendant swerved to the left and slammed on the brakes. At that moment, defendant struck one of the crewmembers with his vehicle. The crewmember died as a result of the collision, and defendant was subsequently charged with criminally negligent homicide, among other crimes.

         Before trial, the state moved in limine to preclude defendant from introducing evidence "related to signage and construction zone standards, " arguing that it was irrelevant and inadmissible under State v. Curtiss, 193 Or.App. 348, 89 P.3d 1262, rev den, 337 Or. 282 (2004), which held that another's contributory negligence is not a defense to a charge of reckless homicide. In response, defendant argued that he should be able to introduce evidence from two experts, Thomas Fries and Scott McCanna, about the traffic safety guidelines applicable to roadworkers.[4]Generally speaking, that evidence would have shown that the road crew did not follow the recommended safety guidelines when setting up temporary traffic control devices as they worked, and that the warnings that the road crew did employ would not have alerted a reasonable driver that the [290 Or. 226] driver was entering a work zone. In addition, defendant also argued that he should be entitled to introduce into evidence two illustrations depicting what the road would have looked like to a driver in defendant's position had the road crew complied with the applicable traffic safety recommendations. Defendant argued that the evidence that the road crew did not comply with applicable safety guidelines, as well as the evidence about how the road would have looked had the crew complied with those guidelines, was relevant to whether his conduct caused the victim's death for purposes of the criminal homicide statutes. Defendant further argued that evidence about the deficiencies in the road crew's safety markings was probative of whether defendant's conduct was criminally negligent and, in particular, probative of whether defendant's failure to recognize that the risk of harm posed by his inattentiveness to the road was a gross deviation from the standard of care. Finally, defendant also contended that the road crew's contributory negligence should be a cognizable defense to the criminal charges against him, notwithstanding Curtiss.

         The trial court ruled that evidence regarding the applicable guidelines and the road crew's failure to comply with them, evidence regarding how the road would have looked if the crew had complied with the guidelines, and evidence addressing the adequacy of the markings that the road crew did use was not relevant, and precluded ...


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