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State v. Homan

Court of Appeals of Oregon

October 3, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
TRISHA JO HOMAN, Defendant-Appellant.

          Argued and submitted August 2, 2018

          Tillamook County Circuit Court 14CR23129 Jonathan R. Hill, Judge.

          David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jacob Brown, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Landau, Senior Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for the offenses of failure to perform the duties of a driver to injured persons, reckless driving, and recklessly endangering another person. The convictions arose from defendant's act of unsafe passing that played a role in a fatal car accident. At trial, defendant sought to cross-examine the officer who handled the analysis of the crash scene, regarding the fact that the officer had previously submitted false time sheets. That fact, defendant contended, would permit an inference that the officer had a bias in favor of the district attorney's office because it had not pursued criminal charges against her for the false time reporting. The trial court denied defendant's request, finding that defendant was required to obtain the officer's records through public records laws if defendant wanted to cross-examine on the time sheet issue. The state concedes that the trial court's preclusion of the officer's cross-examination was error, but argues that the error was harmless. Held: The trial court erred by denying defendant's request to cross-examine the officer, but that error was harmless. The state did not urge the jury to rely on the officer's testimony in assessing defendant's guilt; instead, its theory was that the jury should convict defendant based on the testimony of the percipient witnesses [294 Or.App. 260] to the accident, notwithstanding the ample problems with the officer's work. Additionally, there was abundant testimony from percipient witnesses, including defendant's own husband, to support the jury's finding of guilt on the particular charges.

         Affirmed.

         [294 Or.App. 261] LAGESEN, P. JUDGE

         Defendant appeals a judgment of conviction for one count of failure to perform the duties of a driver to injured persons, ORS 8ll.7O5(2)(b); reckless driving, ORS 811.140; and recklessly endangering another person, ORS 163.195. The convictions arose from defendant's act of unsafe passing on Highway 6 in Tillamook County, an act that played a role in a fatal car accident. At trial, defendant sought to cross-examine Reding, the Oregon State Police Trooper assigned to handle the technical analysis of the crash scene, regarding the fact that she had submitted time sheets falsely claiming to have worked 41 hours that she did not work. Defendant contended that the evidence would permit an inference that Reding had a bias in favor of the Tillamook County District Attorney's office because the office had decided not to pursue criminal charges against her. Defendant further contended that the issue with Reding's time sheet would give her the incentive to "make her appear that she did a competent job in this accident reconstruction." The trial court precluded that line of cross-examination, accepting arguments by the state and Reding's attorney that defendant was required to obtain Reding's records through the public records laws, ORS 192.311 to 192.475, if defendant wanted to cross-examine her about the issue with her time sheets. On appeal, the state concedes-correctly-that the trial court erred when it concluded that defendant's failure to seek Reding's records through the Public Records Act precluded the requested cross-examination.[1] It argues, however, that the error in excluding that cross-examination was harmless. We agree.

         As noted, defendant's convictions relate to a fatal car crash. While defendant and her husband were driving home to Portland from Pacific City, defendant crossed into the oncoming traffic lane in an attempt to pass a convertible. The cars were headed toward a curve at the time. An RV came around the curve, and defendant moved back into the [294 Or.App. 262] eastbound lane to avoid colliding with the RV. This forced the convertible into the gravel shoulder which, in turn, resulted in the driver losing control of the car and crossing back into the highway. The convertible was T-boned by a westbound Jeep. The collision killed the driver of the convertible and seriously injured the occupants of the Jeep. Defendant did not stop at the accident site.

         The incident led to 10 criminal charges against defendant: second-degree manslaughter (for the death of the convertible driver); failure to perform the duties of a driver to injured persons (for not stopping at the scene of the accident); two counts of third-degree assault (for the injuries to the occupants of the Jeep); one count of reckless driving; and five counts of recklessly endangering another person (four counts for "unlawfully and recklessly creat[ing] a substantial risk of serious physical injury" to others on the road; one count for doing so with respect to her own husband, her passenger). A jury found defendant guilty on three of the charges: failure to perform the duties of a driver to an injured person; reckless driving; and the reckless endan germent charge involving defendant's husband. On the remaining seven counts, the jury acquitted defendant on some and hung on the others. Thus, the issue before us is whether the trial court's ruling precluding defendant from cross-examining Reding regarding the time sheet issue was harmless as to the three counts on which defendant was convicted.

         An error in excluding evidence is harmless if there is "little likelihood that the error affected the jury's verdict." State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003). For three reasons, we conclude that that standard is met here.

         First, the state did not urge the jury to rely on Reding's testimony in assessing defendant's guilt. Instead, it appears that the state's primary reason for calling Reding may have been to prevent defendant from urging the jury to draw a negative inference from a failure to call Reding and to proactively address defendant's theory that the police investigation had been inept. In other words, the state's theory of the case, as articulated to the jury, was, in essence, that the jury should convict defendant based on the testimony of the [294 Or.App. 263] percipient witnesses to the accident, notwithstanding the problems with Reding's work. In its opening statement, the state told the jury (1) that part of the case would be about "what the witnesses are going to tell you all about" what happened that day; (2) that "[t]he rest of the case is going to be a lot about what the police did and what they did wrong"; and (3) that "Trooper Reding made a mistake." In closing argument, the state again emphasized that the jury's task was to determine what happened that day, explaining that "that involves deciding what the witnesses saw that ...


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