State v. Rivera-Ortiz

288 Or.App. 284

406 P.3d 73

STATE of Oregon, Plaintiff-Respondent,

v.Joel RIVERA-ORTIZ, Defendant-Appellant.

A157427

Court of Appeals of Oregon.

Argued and submitted January 27, 2016.

October 18, 2017

Anne Fujita Munsey, 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.

Peenesh H. Shah, 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 Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

EGAN, J.

Defendant appeals a judgment of conviction for reckless driving, ORS 811.140,¹ arising from a traffic collision. In his first two assignments, defendant assigns error to the trial court's denial of his motions in limine to exclude a police officer's opinion testimony explaining how the accident occurred and the general rate of speed at which defendant was traveling on impact. Defendant argues that both portions of testimony should have been excluded because the police officer was not a qualified accident reconstruction expert and because the testimony constituted scientific evidence for which the state failed to lay the proper foundation. He also assigns error to the trial court's denial of his motion for judgment of acquittal. We affirm.

We review for legal error whether the trial court properly applied OEC 702 to determine that an expert was qualified to give testimony about a particular topic. State v. Rogers , 330 Or. 282, 315, 4 P.3d 1261 (2000). We also review for legal error whether evidence is "scientific," and, if so, whether it is admissible. State v. Sampson , 167 Or. App. 489, 495, 6 P.3d 543, rev. den. , 331 Or. 361, 19 P.3d 354 (2000). Finally, we review the denial of a motion for judgment of acquittal for legal error, viewing the evidence in the light most favorable to the state to determine whether any rational trier of fact could have found the elements of the crimes beyond a reasonable doubt. State v. Luers , 211 Or. App. 34, 53, 153 P.3d 688, adh'd to as modified on recons , 213 Or. App. 389, 160 P.3d 1013 (2007). "Because the jury found defendant guilty, we state the facts in the light most favorable to the state." State v. Henley , 281 Or. App. 825, 826, 386 P.3d 126 (2016), rev. allowed , 360 Or. 752, 388 P.3d 720 (2017).

It was getting dark as defendant was driving a 1989 Honda Civic, a two-door hatchback, south on Eastside Road in Hood River. The posted speed limit on that section of Eastside Road was 45 miles per hour. R was driving a Chevrolet S-10 pickup truck east on Paasch Road with her 12-year-old daughter and her daughter's friend. R stopped at the stop sign of the intersection of Paasch Road and Eastside Road, intending to turn right into the southbound lane of Eastside Road.

When R looked to her left to check for traffic, she saw defendant's car, with its headlights on, traveling toward her in the southbound lane. R believed the Honda Civic was a sufficient distance away for her to safely turn right in front of it onto Eastside Road. As she pulled out to turn right, defendant's car hit the front of the driver's side of the truck. The point of impact was a few feet inside of the fog line of the southbound lane. The impact spun the S-10 pickup approximately 270 degrees, and the truck ended up on the west shoulder of Eastside Road, 35 feet southwest of the point of impact. The front of the S-10 pickup was destroyed, leaving the driver's-side front wheel pushed under the truck's carriage. Defendant's Honda Civic rolled side-over-side in the southbound lane and then slid on its roof. It came to rest, upside down, in the same lane of traffic as it had been travelling, 388 feet from the point of impact. The front and both sides of the Honda Civic were damaged. None of the vehicles' occupants were seriously injured.

Sergeant Flem, of the Hood River County Sherriff's Office, arrived at the accident scene after other emergency personnel. He first checked the damage to the S-10 pickup and then the damage to the Honda Civic, observing a trail of scuff marks and vehicle debris that ended at the Honda Civic. Flem directed another officer to take measurements at the scene. From what he saw at the scene of the collision, Flem concluded that the accident occurred when R pulled forward from the stop sign to turn right and the front passenger's side of the Honda Civic hit the front driver's side of the S-10 pickup.

When Flem interviewed defendant later that evening, defendant stated that he had been driving 45 to 50 miles per hour when his car hit the S-10 pickup and that the truck had been turning left when he hit it. Flem did not believe defendant's story because it was not consistent with his observations at the accident scene, and he issued defendant a citation for misdemeanor reckless driving.

Defendant was charged with misdemeanor reckless driving, and he requested a jury trial. The state intended to call Flem to testify at trial about the movement of the vehicles at and around the time of impact and defendant's rate of speed before impact. Before trial, defendant filed a motion in limine to exclude testimony by Flem regarding the circumstances of the collision and defendant's rate of speed. Defendant contended that that testimony should be excluded under OEC 702,² because it constituted expert scientific evidence about which Flem was not qualified to testify because he was not a qualified accident reconstruction expert. Moreover, defendant argued, the state failed to lay the proper foundation for the admissibility of scientific evidence under State v. Brown , 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key , 321 Or. 285, 899 P.2d 663 (1995).

The state acknowledged that Flem was not an accident reconstruction expert but contended that, based on Flem's training and experience, he was qualified to testify about the motion of the vehicles during the accident and that defendant was traveling at a "higher rate of speed" at the time of impact. The state further contended that it was not offering Flem's testimony as scientific evidence but, instead, was offering evidence of the conclusions that Flem could properly make with his specialized knowledge, experience, and training.

The trial court allowed the state to make an offer of proof by eliciting testimony from Flem about his specialized training, experience, and knowledge of traffic collisions and about the general conclusions he could make about a traffic collision based on that training, experience, and knowledge. Flem told the court that he had been with the sheriff's office for 27 years and had investigated over 100 traffic accidents. He explained that while he was at the police academy he had attended an eight-hour course on investigating traffic collisions. He also had attended, during his time in the sheriff's office, two more eight-to-10-hour training sessions that involved investigating mock crashes, and two four-hour classes on investigating traffic collisions, which were taught by an accident reconstruction specialist.

Flem testified that, from that training, he had learned how to read acceleration marks and deceleration marks, how to tell the difference between skid marks and sideways yaw marks, and how to recognize scuff marks and their causes. Additionally, he explained that he had learned about the debris fields that vehicles leave after impact, from which he could determine the point of impact and each vehicle's movements after impact. Flem also testified that, through his experience and training, he had learned how to determine an approximate range of a vehicle's speed at impact based on the amount of damage to the vehicles and the distances that the vehicles had traveled from the point of impact. Flem told the court that his training and experience had taught him that slow-moving vehicles are more likely to remain close together after impact and that vehicles traveling at higher speeds are more likely to end up with a greater distance between them after impact. He further explained to the court that he considered a "low rate of speed crash" to be one in which the vehicles had been traveling at speed limits found on city streets of between 25 and 45 miles per hour and that he considered a "high rate of speed crash" to be one that occurs when the vehicles had been traveling at highway speeds.

After that offer of proof, the trial court allowed Flem to testify as an expert witness under OEC 702, although the trial court limited Flem's testimony with regard to defendant's rate of speed at impact. The trial court allowed Flem to testify only that, based on his training and experience, the accident involved a "high rate of speed collision." The trial court stated that that testimony would properly limit Flem's testimony in light of his training and experience and that "somebody who has experience investigating crashes and has seen about 100, has seen them at high speeds and low speeds, can testify to the difference in how they look."

At trial, Flem testified about his training and experience and about the following observations and conclusions:

(1) the point of impact occurred just over the fog line in the southbound lane of Eastside Road; (2) the damage to the S-10 pickup, as well as the various marks on the road, indicated that the Honda Civic's front passenger's side had hit the front driver's side of the truck; (3) the force of defendant's vehicle caused the S-10 pickup to spin approximately 270 degrees, leaving no sideway skid marks or yaw marks on the road, "which indicated through [his] training and experience [that], at one point, [the truck's] rear tires had to have become airborne"; (4) after impact, the Honda Civic remained in the southbound lane while it barrel-rolled for 146 feet and then slid on its roof for 242 feet; and (5) because the Honda Civic remained in the...