State v. Downing, 10C47430

• Decision Date: 27 January 2016
• Docket Number: A151627.,10C47430
• Citation: 366 P.3d 1171,276 Or.App. 68
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Sophia Louise DOWNING, Defendant–Appellant.
• Court: Oregon Court of Appeals

276 Or.App. 68

366 P.3d 1171

STATE of Oregon, Plaintiff–Respondent,

v.Sophia Louise DOWNING, Defendant–Appellant.

10C47430

A151627.

Court of Appeals of Oregon.

Argued and Submitted Nov. 10, 2014.

Decided Jan. 27, 2016.

Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Assistant Attorney General.

Before SERCOMBE, Presiding Judge, and HADLOCK, Chief Judge, and TOOKEY, Judge.

SERCOMBE, P.J.

Defendant appeals a judgment of conviction for two counts of first-degree manslaughter, ORS 163.118 ; one count of second-degree assault, ORS 163.175 ; one count of driving under the influence of intoxicants, ORS 813.010 ; and one count of recklessly endangering another person, ORS 163.195. To prove the manslaughter and assault charges, the state was required to demonstrate that defendant committed those crimes with an "extreme indifference to the value of human life." On appeal, defendant argues that the state failed to offer sufficient evidence to prove that element of those crimes and that the trial court gave the jury a misleading instruction about what constitutes "extreme indifference to the value of human life." Defendant also asserts that the trial court erred when it refused to suppress certain of defendant's incriminating statements. Finally, defendant contends that the trial court improperly allowed the state's expert witnesses to testify about portions of an incomplete drug recognition expert (DRE) protocol. For the reasons that follow, we conclude that the trial court did not err when it denied defendant's motions for judgments of acquittal, allowed testimony about defendant's incriminating statements, and permitted the state's experts to testify about portions of the DRE protocol. We conclude, however, that the trial court's jury instruction was erroneous and that giving that instruction prejudiced defendant. We, therefore, reverse and remand the convictions for manslaughter and second-degree assault, remand for resentencing, and otherwise affirm.

We begin by stating the relevant historical facts. We state the facts that are relevant to a defendant's motion for a judgment of acquittal in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). With respect to those facts pertinent to defendant's motion to suppress, we defer to the trial court's "findings of fact, both explicit and implicit, provided that there is sufficient evidence in the record to support them." State v. Pettersen, 256 Or.App. 385, 386, 300 P.3d 277 (2013) (citing State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993), and Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968) ).

On the afternoon of September 23, 2010, defendant was driving north on Lancaster Avenue in Salem. School bus driver Kaufman was transporting a kindergarten class when defendant's vehicle cut in front of the bus, requiring Kaufman to slam on her brakes. Kaufman watched defendant drive over the curb and onto the sidewalk, and saw that defendant had a "glassy" stare. A few moments later, transit bus driver Duncan encountered defendant when Duncan's bus and defendant's car stopped next to each other at a stop light on Lancaster. Duncan saw that defendant had an unlit cigarette in her mouth and was digging through her purse. When the light turned green, defendant did not immediately start to move forward and Duncan drove past her.

Duncan's route took him close to Chemeketa Community College and Winema High School, which have adjoining campuses. At the intersection of Lancaster and Winema Street, there is a crosswalk across Winema. At the time that Duncan approached the crosswalk, students from Winema High School had just finished their school day and were using the crosswalk to get to a bus stop on the other side of the street.

Duncan saw defendant's vehicle reappear and pass Duncan's bus on the left at about 40 miles per hour. Defendant then swerved into the right lane in front of the bus, lost control of her car, drove off the road and onto the sidewalk, and hit a utility box. Defendant's car then continued into a crowd of students who were in the crosswalk.

Defendant struck three pedestrians with her car. One of them, Cervantes, rolled onto the hood of her car, while the other two, Green and Echeverria, were dragged under the car a short distance. A crowd of students began to gather, several called 9–1–1, and others tried to administer aid to the victims. A high school student, Fessler, began administering first aid to Green, who was nonresponsive and was bleeding from an injury on her head

. A short time later, Fraker, who was a student at the prenursing program at the community college and a certified nursing assistant at Salem Hospital, took charge of aiding Green. Echeverria was conscious but unable to stand.

After parking her car, defendant approached the crowd. As she walked up to Green, defendant said that her brakes had failed. Defendant moved to touch Green and asked Fessler if Green was okay. Fessler told defendant to move back. After noting that members of the crowd had her license plate number, defendant asked Fessler if she could leave. Fessler said that defendant could not. Defendant walked to the sidewalk curb, sat down approximately one foot from Green's head, and smoked a cigarette. Fessler described defendant as "dreamy, not really all there," and Fraker testified that, as defendant sat on the curb, she said something like, "I'm going to go to jail for this."

Deputy Kinyon of the Marion County Sheriff's Office was the first police officer to arrive at the accident scene. After the paramedics arrived, Kinyon asked the crowd who the driver was. Defendant, who was crying, raised her hand and said that she was the driver. According to Kinyon, defendant seemed "shocked." Kinyon asked defendant to move away from the crowd and then asked her what had happened so that he could get a "basic overview" of the accident. She told him that the students ran in front of her car. Kinyon asked defendant where her vehicle was and she pointed to where it was parked.

It began to rain and Kinyon became concerned that the gathering crowd would become hostile toward defendant. He asked defendant whether she would mind sitting in the back of the patrol car to "get out of the rain and get away from the crowd." He then told her that she was not under arrest or even detained and asked if she understood that. Defendant said she understood, walked over to the patrol car, and sat in the back seat.

Once defendant was in the patrol car, Kinyon asked her if she had been drinking or had taken any drugs. Defendant said that she had not had anything to drink, but that she had been taking medication for anxiety. Specifically, defendant said that she had taken Lorazepam that morning. Kinyon then closed the back door of the patrol car; he also turned off the car's police radio so that defendant would not hear about the condition of the victims. Kinyon used his portable radio to broadcast that he had "detained" defendant.

After defendant was asked if she would voluntarily go to the hospital and she agreed to do so, Deputy Myers was ordered to bring defendant there. Myers told defendant that she was not under arrest and moved defendant to the back of her patrol car. Myers did not ask defendant any questions as they drove; defendant made small talk. Myers and defendant arrived at the hospital at 4:02 p.m. After defendant was checked into a treatment room, she spontaneously told Myers, "I guess I hurt two people." Myers did not tell defendant anything about the condition of the victims.

Sometime between 4:00 p.m. and 5:00 p.m., Deputy Clarke, a drug recognition expert, arrived to examine defendant for signs of drug impairment. Clarke noticed that defendant had droopy eyelids

and slurred her speech and that her shirt was inside-out. Defendant consented to blood and urine tests. A blood sample was taken from defendant at 4:21 p.m. and a urine sample was taken at 4:27 p.m. Clarke read defendant Miranda warnings, and defendant said that she understood those warnings.

Clarke then began a DRE investigation. As part of the standardized 12–step DRE protocol, defendant performed various tests for impairment.¹ Clarke, however, only undertook nine of the 12 steps in the protocol; he did not interview any of the officers who talked to defendant immediately after the accident, perform a Breathalyzer test on defendant, or test for "muscle rigidity."

Clarke asked defendant questions about the previous 24–hour period. In response to those questions, defendant told him that she had fallen asleep shortly after 10:30 p.m. the night before. Her alarm woke her at 8:30 a.m., but she went back to sleep. Defendant woke up again at 11:30 a.m. and got ready for her day. She left the house at 1:25 p.m. and drove to a cellular phone provider store to pay her bill, but discovered that the store was closed. Defendant was driving home to check on her dog when she struck Cervantes, Green, and Echeverria. Defendant also told Clarke that she took one milligram of Lorazepam

at 8:00 a.m. on the day of the accident. She also stated that she took 75 milligrams of Cyclobenzaprine the night before.²

Clarke obtained a search warrant for a second blood draw and urine sample. Another deputy, Bennett, read the search warrant to defendant and asked her to come to the central police district office for an interview. Defendant said she needed to go check on her dog. Bennett told defendant that several people had been seriously injured and that that was more important than checking on her dog. Defendant then agreed to be interviewed. Defendant's blood was drawn a second time at 7:54 p.m. Bennett then took defendant to the central...