State v. S.N.R. (In re S.N.R.)
| Citation | 260 Or.App. 728,320 P.3d 569 |
| Decision Date | 29 January 2014 |
| Docket Number | Petition Number 10JV0064001,10JV0064,A148495. |
| Parties | In the Matter of S.N.R., a Youth. STATE of Oregon, Respondent, v. S.N.R., Appellant. |
| Court | Court of Appeals of Oregon |
OPINION TEXT STARTS HERE
George W. Kelly argued the cause and filed the brief for appellant.
Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.
In this juvenile delinquency matter, youth appeals from the juvenile court's taking of jurisdiction and disposition based on its conclusion that youth committed acts that would have constituted criminally negligent homicide and assault in the third degree if they had been committed by an adult. On appeal, youth raises two assignments of error, one of which we summarily reject. In the remaining assignment of error, youth argues that there was insufficient evidence to support the juvenile court's conclusions. We agree, on de novo review, that youth did not consciously disregard a known and substantial risk that she would fall asleep while driving herself home after school and that the evidence is insufficient to establish that youth's actions were a gross deviation from the standard of care a reasonable person would observe in the situation. Therefore, we reverse.
For the reasons explained below, 260 Or.App. at 732–34, 320 P.3d at 571–72, we exercise our discretion to review this case de novo. Although we state the background facts consistently with the juvenile court's express and implied findings that were supported by the uncontroverted evidence, as explained below, we make findings anew on the record with respect to a certain statement that youth made to a state trooper following the accident and with the respect to the inferences that can be reasonably drawn from the corrected statement.
On September 15, 2010, youth drove a friend home to Gold Beach, Oregon, after school. Youth then proceeded to drive to her home in Brookings, Oregon. The accident occurred at approximately 5:00 p.m., and the conditions were dry and clear. Youth was traveling the speed limit of 55 miles per hour in the southbound lane of Highway 101. At about milepost 341, youth's vehicle crossed into the northbound lane and struck a motorcyclist. The crash threw the rider from his motorcycle and into a roadside sign post, killing him. Youth's vehicle continued to cross the northbound lane, leaving skid marks in the road, and came to rest at the side of the highway after hitting a tree.
Following the crash, youth was hysterical and repeatedly told witnesses at the scene that She told Senior Trooper Wehner at the scene that she was tired, that she believed she had fallen asleep, and that she had struck the motorcycle and then the tree.
Wehner also recorded an interview with youth at the hospital. The recording of youth's statement was played to the juvenile court and admitted as an exhibit in the proceedings. A transcript of the recorded statement was also admitted as an exhibit. The relevant portions of the recorded interview are as follows:
The transcriptionist incorrectly transcribed the above emphasized statement made by youth as, “So I—I knew I should have pulled off, so I–I was waiting for somewhere to sleep, but I couldn't (inaudible).” Upon listening to the recording that was played to the juvenile court, however, we find that the transcription error is apparent. As a result, and as explained more fully below, we take de novo review to find anew the correct version of youth's statement and the reasonable inference to be drawn from it.
The night before the accident, youth had slept for approximately five hours after staying up late with her boyfriend. During class the day of the accident, youth also fell asleep for about one hour. The state stipulated that youth had not been drinking, had not taken any drugs, and was not using a cell phone at the time of the accident. The state did not present any evidence of how youth was driving before the accident or any additional evidence of youth's level of fatigue during the day, before she started driving, or when she began to feel tired.
The uncontroverted evidence showed that there were seven pull outs on the southbound side of Highway 101 between milepost 330 (south of Gold Beach) and milepost 341 (the accident site). The last safe pull out was 1.8 miles before the accident site, and at the speed limit of 55 miles per hour, it would have taken youth approximately two minutes to travel that distance. The state also presented evidence that there was a dedicated left turn lane that led to a wide spot on the northbound side of the highway. The state's witness estimated that the left turn was one eighth to one quarter of a mile before the accident site. Kenneth Dukek, Director of Curry County Juvenile Department, who had investigated how many pull outs were available on youth's drive, testified that he only looked for pull outs on the southbound side of the highway because a normal person would not be looking for a pull out on the opposite side of the road.
Youth offered testimony from a human factors expert, Dennis Wylie. Wylie testified that people are not good at recognizing when they are fatigued and that a driver can go from not being aware of tiredness, to being aware of tiredness, to a light state of sleep where the driver is not responding to stimuli, all within 60 seconds. Wylie testified that driver drowsiness is not uncommon and that “the driver is not always aware that the driver is being overcome by fatigue, and by the time they realize it, it could be too late.” Wylie also testified that it is very common for people to drive after only five or six hours of sleep.
At the conclusion of the evidence, the juvenile court concluded as follows:
“And I disagree with [youth's defense counsel], and I feel that if it were just the issue of falling asleep at the wheel and—or even drifting off at the wheel and moving over, that would be one thing, but that combined with the fact that you—you did indicate to the two witnesses you were so tired, you indicated to Trooper Wehner that you were tired, you fell asleep, you were waiting for some—You said, ‘So I knew—I knew I should have pulled off, so I was waiting for somewhere to sleep, but I couldn't.$7D You indicated, ‘I started getting tired, and I was so—um, I knew because I do get tired when I sleep, so I have to pull over and take naps.’
Thus, the juvenile court relied on the incorrect statement ascribed to youth in the transcript of her interview by Wehner for the court's crucial factual finding concerning youth's knowledge and disregard of the risk of falling asleep while she was driving.
On appeal, youth challenges the sufficiency of the evidence to find that youth's acts constituted criminally negligent homicide and assault in the third degree. Specifically, youth contends that there was insufficient evidence that (1) youth consciously disregarded the risk that she could fall asleep while driving, (2) the risk was substantial, and (3) youth's acts were a gross deviation from the standard of care of a reasonable driver. The state counters that the evidence was sufficient because it showed that youth was sleep-deprived, that she had a known tendency to get fatigued while driving, that she knew she was so tired that she needed to pull over, and that there was an opportunity to pull over one eighth to one quarter mile before the crash.
Youth also requests that we exercise our discretion to take de novo review of this case. ORS 19.415(3)(b). We exercise our discretion to take de novo review sparingly and only in exceptional cases. ORAP 5.40(8)(c); Dept. of Human Services v. N. S., 246 Or.App. 341, 344, 265 P.3d 792 (2011). We have in prior cases concluded that a case is exceptional, and...
To continue reading
Request your trial
-
Dep't of Human Servs. v. J.M. (In re C.W.), J120144, 01J120144
...request de novo review. We exercise our discretion to review de novo sparingly and only in exceptional cases. State v. S.N.R., 260 Or.App. 728, 733, 320 P.3d 569 (2014) ; ORAP 5.40(8)(c). This is not an exceptional case, and we decline to exercise de novo review. Accordingly, "we view the e......
-
Dep't of Human Servs. v. T.S. (In re T.S.)
...de novo review, pursuant to ORS 19.415(3)(b). We exercise that discretion sparingly and only in exceptional cases. State v. S. N. R., 260 Or.App. 728, 733, 320 P.3d 569 (2014) ; ORAP 5.40(8)(c). We do not view this as an exceptional case, and we decline to exercise de novo review. According......
-
In re Morgan
...the property division de novo. We exercise that discretion sparingly and only in exceptional cases. ORAP 5.40(8)(c) ; State v. S.N.R., 260 Or.App. 728, 733, 320 P.3d 569 (2014). Here, wife contends that we should exercise de novo review of the trial court's property division because its awa......
-
Morgan v. Morgan, 10DO0805DS; A151840.
...the property division de novo. We exercise that discretion sparingly and only in exceptional cases. ORAP 5.40(8)(c); State v. S.N.R., 260 Or.App. 728, 733, 320 P.3d 569 (2014). Here, wife contends that we should exercise de novo review of the trial court's property division because its awar......