State v. Hedgpeth

290 Or.App. 399

415 P.3d 1080

STATE of Oregon, Plaintiff-Respondent,

v.John Charles HEDGPETH, Defendant-Appellant.

A158196

Court of Appeals of Oregon, En Banc.

Argued and submitted September 6, 2016

resubmitted en banc November 20, 2017.

February 22, 2018

Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Egan, Chief Judge, and Armstrong, Ortega, Hadlock, DeVore, Lagesen, Tookey, Garrett, DeHoog, Shorr, James, and Powers, Judges, and Sercombe, Senior Judge.

SHORR, J.

Defendant appeals a judgment convicting him of driving under the influence of intoxicants (DUII). ORS 813.010.¹ In his second assignment of error, defendant argues that the trial court erred when it denied his motion for judgment of acquittal. Specifically, defendant argues that, based on the evidence presented at trial, no factfinder could have found beyond a reasonable doubt that defendant's blood alcohol content (BAC) was .08 percent or higher when he was riding or "driving" his motorcycle. On appeal, we conclude that, even though the fact that alcohol in the blood dissipates over time is common knowledge, that knowledge combined with the minimal evidence presented at trial in this case is not sufficient for a reasonable factfinder to find beyond a reasonable doubt that defendant's BAC was above .08 percent at the time he was driving. Accordingly, we reverse.²

The relevant facts are few and undisputed. Oregon State Police Trooper Dunlap stopped defendant for riding his motorcycle without a helmet. Following that stop, Dunlap took defendant into custody for DUII and brought defendant to the North Bend Police Department for a blood alcohol test using an Intoxilyzer. That test began approximately one hour and 45 minutes after defendant was initially stopped. The test indicated that defendant's BAC was .09 percent. Between the time that defendant was stopped and the time that his BAC was tested, Dunlap did not observe defendant consume any alcohol.

Defendant was charged by information with DUII. A short bench trial was held in which the state relied solely on a per se theory of intoxication—i.e. , that defendant was legally intoxicated under the relevant statute because he had a .08 percent or higher BAC when he was riding his motorcycle. ORS 813.010(1)(a).³

In defendant's closing argument, he argued that the trial court could not convict him because the state's evidence was legally insufficient to prove that he was intoxicated in violation of ORS 813.010(1)(a) at the time that he was riding. Specifically, defendant noted that the only proof offered by the state was that defendant's BAC was .09 percent when measured one hour and 45 minutes after he had been driving and that defendant had not consumed any alcohol during that time. Defendant argued that there was no basis for a factfinder to determine, without further evidence, whether defendant had a .08 percent or higher BAC at the time that he was driving. The trial court, acting as a factfinder, rejected defendant's argument and convicted defendant, noting:

"Well, in this case, I will find [defendant] guilty because the only evidence before me is what he blew, and I don't have evidence at all that suggests one way or the other what you do with *** that to equate it with time of driving. But that's the evidence I have.

"So, I'll find him guilty of that."

Defendant appealed.

As noted, on appeal defendant argues that the trial court erred in denying his motion for judgment of acquittal because no factfinder could infer beyond a reasonable doubt that defendant had a BAC of .08 percent or higher when he was riding his motorcycle.⁴ Specifically, defendant contends that it is speculative to find that his BAC was above the legal limit at the time he was driving based on the results of a blood alcohol test that he took one hour and 45 minutes later. In response, the state contends that, under prior case law, the trial court was entitled to infer based on the record before it that defendant's BAC when he was riding was at least as high as the BAC measured by defendant's later blood alcohol test. We agree with defendant and reverse.

"The sufficiency of the evidence is a question of law." State v. Reynolds , 250 Or. App. 516, 520, 280 P.3d 1046, rev. den. , 352 Or. 666, 293 P.3d 1045 (2012). We review "questions of the sufficiency of the evidence in a criminal case following a conviction by examining the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt." State v. Cunningham , 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den. , 514 US 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). However, "[i]f the state has sought to establish an element of a criminal offense by reasonable inference, * * * whether sufficient evidence supports the inference is a question for a court to decide." State v. Guckert , 260 Or. App. 50, 55, 316 P.3d 373 (2013), rev. den. , 354 Or. 840, 326 P.3d 77 (2014).

Here, the state attempted to establish an element of its DUII case by inference. That is, the state contends that, based on defendant's blood alcohol test result of .09 percent obtained one hour and 45 minutes after defendant was driving, the fact that defendant had not consumed any alcohol during that intervening time, and the common knowledge that alcohol dissipates over time, a reasonable factfinder could infer that defendant's BAC was .08 percent or higher at the time that he was riding his motorcycle.

The state is allowed to rely on "circumstantial evidence and reasonable inferences flowing from that evidence" to prove an element of a crime. State v. Bivins , 191 Or. App. 460, 466, 83 P.3d 379 (2004). However, "[t]here is a difference between inferences that may be drawn from circumstantial evidence and mere speculation." Id. at 467, 83 P.3d 379 (internal quotation marks omitted). "Reasonable inferences are permissible; speculation and guesswork are not." Id. The line between reasonable inferences and impermissible speculation " ‘is drawn by the laws of logic.’ " Id. (quoting Tose v. First Pennsylvania Bank, N.A. , 648 F.2d 879, 895 (3d Cir.), cert. den. , 454 US 893, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981), abrogated on other grounds by Griggs v. Provident Consumer Discount Co. , 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) ). As a result, the issue before us is whether mere logic renders probable that, when a person's BAC is .09 percent one hour and 45 minutes after he drove and he has not consumed alcohol over that period, that person's BAC was at least .08 at the time that he was driving. See Bivins , 191 Or. App. at 467, 83 P.3d 379 (noting that, if there is a "logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts" (internal quotation marks omitted; emphasis added) ).

We begin by noting that we agree with the proposition, as does the dissent, that it is common knowledge that alcohol dissipates from the body over time. 290 Or. App. at 409, 415 P.3d at 1085 (Powers, J., dissenting). That proposition has long been recognized, at least in dictum , by Oregon courts. See, e.g. , State v. Eumana-Moranchel , 352 Or. 1, 11, 277 P.3d 549 (2012) (noting, in dictum , that BAC at the time of driving can be proven with a combination of a chemical analysis and "an inference that blood alcohol rates dissipate over time"); State v. Parker , 317 Or. 225, 232 n. 9, 855 P.2d 636 (1993) (noting, in dictum , that "[i]t is common knowledge that the level of alcohol in the blood and alcohol's effect on a person's behavior dissipate over time" (internal quotation marks omitted) ); State v. Conway , 75 Or. App. 430, 435, 707 P.2d 618, rev. den. , 300 Or. 451, 712 P.2d 110 (1985) (noting, in dictum , that it is "common knowledge that alcohol dissipates" over time).

We also agree that a factfinder can rely on that common knowledge in determining whether the state has sustained its burden of proof. "The jury is entitled to draw inferences from matters of common knowledge." Dodge v. Tradewell Stores , 256 Or. 514, 516, 474 P.2d 745 (1970). Thus, although a factfinder may not use personal knowledge as a substitute for evidence not provided by the state, "triers of fact are entitled to draw inferences from facts directly proved based on their common knowledge, experience, or personal observation." State v. Clelland , 214 Or. App. 151, 159, 162 P.3d 1081 (2007). However, we do not agree that the factfinder's common knowledge can bear the weight that the state would require it to bear, and that it must bear if we are to conclude that the evidence adduced at trial was sufficient to support defendant's conviction.

The fact that blood alcohol dissipates does not logically lead to any conclusion regarding a specific person's earlier BAC at a specific time. The fact that blood alcohol dissipates is notable for what it does not tell the court. It does not, for example, by itself inform the court whether, at any given time , a person's blood alcohol is dissipating or increasing. After all, it is also a matter of common knowledge that, before a person's blood alcohol can dissipate, alcohol must accumulate in the blood. See generally State v. Trujillo , 271 Or. App. 785, 353 P.3d 609, rev. den. , 358 Or. 146, 363 P.3d 1288 (2015) (discussing scientific evidence regarding blood alcohol accumulation and dissipation); State v. Baucum , 268 Or. App. 649, 343 P.3d 235, ...