State v. Cespedes–Rodriguez

• Decision Date: 05 December 2012
• Docket Number: A144008,090747995.
• Citation: 253 Or.App. 698,294 P.3d 493
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Edward Martin CESPEDES–RODRIGUEZ, aka Edward M. Cespedes, Defendant–Appellant.
• Court: Oregon Court of Appeals

253 Or.App. 698
294 P.3d 493

STATE of Oregon, Plaintiff–Respondent,
v.
Edward Martin CESPEDES–RODRIGUEZ, aka Edward M. Cespedes, Defendant–Appellant.

A144008; 090747995.

Court of Appeals of Oregon.

Argued and Submitted Dec. 22, 2011.
Decided Dec. 5, 2012.

David J. Celuch, Portland, argued the cause and filed the brief for appellant.

Pamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before ORTEGA, Presiding Judge, and BREWER, Judge, and SERCOMBE, Judge.

SERCOMBE, J.

[253 Or.App. 699]After a bench trial, defendant was convicted of failure to perform the duties of a driver, ORS 811.700. Defendant appeals, arguing that the state produced insufficient evidence to disprove his choice of evils defense beyond a reasonable doubt. We conclude that the evidence was sufficient to disprove that defense and, accordingly, affirm.

We state the facts in the light most favorable to the state. State v. Baranovich, 241 Or.App. 280, 282, 249 P.3d 1284,rev. den.,350 Or. 571, 258 P.3d 527 (2011). Defendant was driving in downtown Portland when he rear-ended and damaged a pedicab,¹ causing its operator, Altermatt, to fall to the ground. Defendant, who, according to Altermatt, smelled of alcohol and appeared intoxicated, remained inside his car following the accident and offered Altermatt $100 if he could “just leave.” Altermatt became visibly upset at defendant's remark and told him that she wanted his “information” and that she thought that he was drunk. Meanwhile, Altermatt's friend, Kelly, approached, stood

[294 P.3d 494]

with his hands behind his back, and calmly told defendant to get out of his car. Defendant then put his car in reverse and drove backward. Altermatt and Kelly chased the car and stood near its front hood. Kelly then hit the car multiple times with a metal object, and defendant drove forward past Altermatt and Kelly and left the scene of the accident. In the days following the accident, defendant did not contact the police or respond to repeated attempts by the police to interview him.²

Defendant was ultimately arrested and charged with failure to perform the duties of a driver, ORS 811.700, and recklessly endangering another person, ORS 163.195. Prior to trial, defendant notified the state that he intended to rely on a choice of evils defense. SeeORS 161.055(3) (a defendant may raise a defense by providing notice in writing to the state before commencement of trial). At trial, defendant testified that he left the scene of the accident because Kelly was [253 Or.App. 700]striking his car with a metal object and he was afraid for his safety. Defendant did not formally move for a judgment of acquittal. Rather, defendant argued in his closing argument that the state had failed to disprove his choice of evils defense beyond a reasonable doubt.

After noting that it had considered the choice of evils defense with respect to the count of failure to perform the duties of a driver, the trial court found defendant guilty of that charge:

“[H]e runs into the pedibike or the bicycle and the defendant admits that, in fact, he knows he ran into the bicycle. There is no dispute about that. Admits that the victim—he didn't see exactly what happened to the victim, but she came out, so he knew there was an incident.

“And then he starts to move his car and it's at that point that the intent, I think, is then clarified later when he doesn't respond to the officers, although he may not have had a duty to, I think that information is relevant, what happens the next day to whether it was his intent to leave the scene of the accident and I do believe it was his intent.

“He didn't stop once he was out of the danger of the other witness and potentially the victim, which I'll get to in just a moment. So I do feel there are sufficient facts proven beyond a reasonable doubt to show that the defendant was intending to leave the scene of the accident after the first hit.”

The trial court alternatively concluded that defendant “did not stop at the first opportunity, which is * * * what he was obligated to do under the duties of a driver.”

In contrast, the trial court found defendant not guilty of recklessly endangering another person. The state's theory at trial was that defendant had recklessly endangered Altermatt when he drove forward past Altermatt and Kelly and left the scene. The trial court explained its verdict on that count as follows:

“With respect to count [two], however, I find him not guilty. I think...