State v. Bilsborrow

• Decision Date: 19 August 2009
• Docket Number: A135785.,061052662.
• Citation: 230 Or. App. 413,215 P.3d 914
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Christopher K. BILSBORROW, Defendant-Appellant.
• Court: Oregon Court of Appeals

215 P.3d 914

230 Or. App. 413

STATE of Oregon, Plaintiff-Respondent, v. Christopher K. BILSBORROW, Defendant-Appellant.

061052662.

A135785.

Court of Appeals of Oregon.

Submitted on February 26, 2009.

Decided August 19, 2009.

Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender,

Legal Services Division, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge.

SCHUMAN, P.J.

Portland police officers found defendant asleep and drunk behind the wheel of his parked car. A jury convicted him of driving under the influence of intoxicants (DUII). ORS 813.010. On appeal, he argues, first, that the trial court erred in denying his motion for a judgment of acquittal (MJOA) because there was no evidence that he had operated the car while intoxicated; and second, that the court abused its discretion by denying his motion for a mistrial after the prosecutor, in closing argument, misstated the law by telling the jury that, if a car's engine is running, "that's movement" for purposes of the DUII statute. The state, in response, argues that the circumstantial evidence was sufficient for the jury to infer that defendant drove while intoxicated and that the court's instructions to the jury remedied any confusion that might have been caused by the prosecutor's misstatement. We affirm.

We review the denial of an MJOA to determine whether, after viewing the facts and the inferences that can reasonably be drawn from them in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den., 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). The facts under that standard are as follows.

At around 2:00 a.m. on September 20, 2006, Portland Police Officers Winters and Pak responded to a report that a man was "passed out" at the wheel of a car parked against a curb at an address in downtown Portland. They found defendant asleep in the car with his head on the steering wheel and his foot on the brake; the car was running, the headlights were off, the emergency brake was not engaged, and the brake lights were on. The car was in a lawful parking space, parallel to the sidewalk with its front wheels turned into the curb. Pak parked his car directly in front of defendant's car and Winters parked his car directly behind it, preventing the car from moving, so that, if defendant "woke up and hit the gas pedal, he wouldn't crash into a building or other people or ourselves." Winters tapped on the window twice to awaken defendant and then, noticing that the driver's side door was unlocked, opened the door. Immediately, Winters noticed "the strong odor of alcohol." Defendant was slow to respond, and he appeared "confused." Because the officers were afraid that defendant's foot might hit the accelerator, they asked him to get out of the car. Winters helped defendant because defendant "was very unstable on his feet, he was very wobbly. I had to hold him up for a second until he was able to catch his balance." Winters set the parking brake, shifted the car out of gear, and removed the keys from the ignition. The officers then took defendant to the police station for a breath test. Neither the person who reported the car to the police nor the police officers saw the car move.

At the station, defendant consented to a breath test, which indicated that his blood alcohol content was 0.18 percent. He told the officer who administered the test that he had parked his car where it was found before becoming intoxicated at two nearby bars; that he decided he would walk back to the car and then drive to a friend's house to sleep before returning to his home in Astoria; but that, once in the car, he fell asleep before moving it. He denied having driven the car while intoxicated. Nonetheless, he was charged with DUII and reckless driving.

At the close of the state's case, defendant moved for a judgment of acquittal on both charges. The trial court granted his motion on the reckless driving charge but denied it on the DUII charge, concluding that

"there is sufficient evidence in the record from which a juror could reasonably draw an inference that defendant is guilty of that charge based on the evidence of his condition combined with his foot being on the brake, the car being in gear and the engine running, and the testimony about where he told the officers he was headed."

Defendant subsequently testified and recounted the events preceding his arrest. His account was consistent with what he had told the officer on the night of his arrest insofar as, in both accounts, he related parking the car where he was found, then drinking, and then walking to the car and never putting it in motion. The account at trial differed, however, in one respect: At trial, defendant testified that he had changed his mind about driving to his friend's house before returning to his car and that the reason the engine was running was not because he was about to drive away when he fell asleep, but because he wanted to listen to music through the car's radio and did not want to run down the battery. The jury evidently did not believe defendant's account and returned a guilty verdict.

On appeal, defendant in his first assignment of error argues that the state failed to present evidence from which a rational juror could conclude beyond a reasonable doubt that he put his car in motion while he was intoxicated and that such evidence is necessary to sustain a conviction for DUII. The state, in response, agrees that a vehicle in motion is a necessary element of DUII, but argues that the jury could reasonably have inferred from the evidence that defendant had, in fact, put the vehicle in motion while he was intoxicated.

Under ORS 813.010(1), "[a] person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle" while exceeding the lawful blood alcohol limit or otherwise being under the influence of intoxicants. Although that statute does not define the term "drives," we previously concluded that "one who `drives' a car within the meaning of ORS 813.010 * * * [is] one who operates, tows, moves or otherwise propels it in any way." Moe v. MVD, 133 Or.App. 75, 79, 889 P.2d 1334 (1995). We also adopted the rule that, for purposes of that statute, "the word `driving' is construed as requiring that the vehicle be in motion in order for the offense to be committed." State v. Martinelli, 6 Or.App. 182, 187, 485 P.2d 647 (1971). The car need not be in motion, however, at the time of the defendant's arrest. Id.

The question before us, then, is whether a rational juror could conclude from the facts presented that, as the state argued, defendant first became intoxicated and then drove the car to the parking spot where it was found. The state maintains that the conclusion can be inferred from the undisputed facts: the engine was running, the car was in gear, and defendant's foot was on the brake. Those facts, the state contends, are adequate circumstantial evidence. Defendant, for his part, argues that such a conclusion is nothing more than conjecture or speculation. The distinction is critical: Reasonable inferences from circumstantial evidence are permissible; speculation and guesswork are not. State v. Bivins, 191 Or.App. 460, 467, 83 P.3d 379 (2004).

Defendant's best argument runs as follows. According to the state, sometime before defendant was found with the car in gear, he drove to the parking place where he was found. The facts on which the state relies to support its theory, the argument continues, support another theory equally as well: It is possible that a drunk person who is found in a parking place in a car that is in gear with the engine running (but the headlights out) has driven to that place while drunk and then passed out or fallen asleep. However, it is equally possible that the person has walked to the car, turned it on, put it in gear, and then passed out or fallen asleep. When the possibilities are, as it were, equally possible, then (defendant contends) the choice between them can be nothing but guesswork. By analogy: Imagine that a jury was asked to review a referee's decision in a "two-out-of-three" coin toss contest. The facts establish...