State v. Skelton

• Decision Date: 22 April 1998
• Citation: 957 P.2d 585,153 Or.App. 580
• Parties: STATE of Oregon, Respondent, v. Gerald Dean SKELTON, Appellant. 9502265CR; CA A93635.
• Court: Oregon Court of Appeals

Page 585

957 P.2d 585

153 Or.App. 580

STATE of Oregon, Respondent, v. Gerald Dean SKELTON, Appellant.

9502265CR; CA A93635.

Court of Appeals of Oregon.

Argued and Submitted Dec. 23, 1997.

Decided April 22, 1998.

Dan Maloney, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Sally L. Avera, Public Defender.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Defendant appeals from his convictions for three counts of first-degree manslaughter, ORS 163.118, one count of second-degree assault, ORS 163.175, one count of third-degree assault, ORS 163.165, and one count of driving under the influence of intoxicants (DUII), ORS 813.010. We remand for resentencing but otherwise affirm.

Between approximately 9:15 p.m. and 9:45 p.m. on September 2, 1995, defendant, who had a blood-alcohol content of approximately .23 percent, was driving a half-ton Chevrolet pickup when he collided with several motorcycles on Highway 140 in Klamath County. The motorcyclists involved in the accident were members of the Outsiders motorcycle club, which was on its way to a nearby gathering of motorcycle clubs. There were a total of seven motorcycles driving behind a lead car. As a result of the accident, three of the motorcyclists were killed and two others were injured. Defendant was found guilty of the listed offenses at trial, and the court sentenced him to a total of 540 months of incarceration on them. Defendant appeals.

Defendant first assigns error to the trial court's decision to exclude the testimony of defendant's expert on accident reconstruction, Tom Fries, that the collision would not have happened if one of the motorcycles had not been over the northern edge of the southern no-passing line on the highway. Fries is a consulting mechanical engineer who specializes in accident reconstruction. According to his testimony and the diagrams that he made to reconstruct the accident, the accident took place on a two-lane highway. The two lanes of the highway were separated by two "no passing" yellow lines. Defendant's pickup was traveling westbound and the motorcycles were traveling eastbound. Therefore, the lane in which defendant should have been traveling was north of the "no passing" yellow lines and the lane in which the motorcycles should have been traveling was south of them. According to Fries, when defendant's pickup and the first motorcycle collided, defendant's pickup was over the northern no passing yellow line and very close to the southern no passing yellow line. The handlebar of the motorcycle and that rider's left leg were over the southern no passing yellow line. Fries testified that defendant's pickup was

"clearly past the north center line. * * * And it is on and it's close to on and getting as close as you can get to, as we can determine from the measurements, to the southern edge. And for there to be an impact, the motorcycle also has to be over that southern edge. For there to be impact and damage."

(Emphasis supplied.) On cross-examination, the state elicited testimony from Fries that defendant's pickup was "[p]robably not" entirely in its lane at the time of the accident. On redirect examination, defendant characterized that testimony as evidence that the accident would not have occurred if defendant's pickup had been "totally and completely" on the north side of the southern no passing line and he sought to ask Fries the following question:

"Q: * * * [S]imilarly, if [the motorcyclist] had been completely in his lane with no part of his motorcycle protruding over the northern edge of the [southern] no passing lane, would this accident have occurred?

"A: No."

The state objected. It noted that the expert had already testified that one of the motorcycles "was in the [no passing] lane." The state argued that the expert should not be able to go beyond that testimony and "answer a question that essentially says that [one of the victims] is guilty of contributory negligence, which is not a defense in this particular case." The trial court sustained the state's objection, saying to defendant: "You've made your point for the [j]ury."

On appeal, defendant argues that the trial court ruled that the evidence was not relevant under OEC 401 ¹ and that that ruling was erroneous because the evidence was relevant to the determination of whether defendant should be convicted of first-degree manslaughter or one of its lesser-included offenses, either second-degree manslaughter or criminal negligence. ² The state counters that the trial court's statement that defendant had already made his point for the jury indicates that its ruling was essentially that the proffered evidence was cumulative. We agree with the state.

We review a trial court's conclusion that evidence is cumulative for an abuse of discretion. State v. Reyes, 143 Or.App. 594, 602, 924 P.2d 866 (1996). Assuming that defendant is correct that the proffered evidence was relevant, we conclude that the trial court did not abuse its discretion in excluding it. As noted above, defendant was able to elicit testimony from Fries that adequately described the location of defendant's pickup and the motorcycle at the time of the collision. In describing the positions, Fries explicitly stated that "for there to be an impact, the motorcycle also has to be over that southern edge. For there to be impact and damage." In context, that testimony is essentially identical to the proffered testimony because it points out that if the motorcycle had been located completely in its lane, there would have been no "impact and damage." In other words, if the motorcycle had been completely in its lane, there would have been no collision. Moreover, defendant argued without objection to the jury that the position of the motorcycle at the time of the accident was relevant to its decision about whether defendant should be convicted of first-degree manslaughter or one of the lesser-included offenses, either second-degree manslaughter or criminal negligence. ³ Finally, the trial court instructed the jury on all three offenses and did not limit the jury's consideration of the evidence about the position of the motorcycle. We conclude, therefore, that the trial court did not abuse its discretion when it excluded the proffered testimony.

Defendant next assigns error to the trial court's decision to exclude, under OEC 401 and OEC 403, the testimony of two of defendant's witnesses, Ron Struble and Audrey Gardner. According to the offer of proof made by defendant, between 8:30 p.m. and 10:30 p.m. on the night of the collision, Struble and Gardner were traveling together from Lakeview to Klamath Falls on Highway 140. ⁴ They were traveling westbound, the same direction as defendant. Struble and Gardner did not see the accident but, at some point during that trip, neither of them could say when, they did pass a group of motorcycles. According to Struble, he first noticed the motorcycles when he saw headlights in the distance that "were spreading apart and getting close together." He was not sure what the lights signified but, to be cautious, he slowed down and moved to the right side of the road. He continued:

"Q: And that was because of the motorcycles that were in your lane of travel?

"A: Well, they weren't really in our lane of travel. But they were, that big a group of them. And some of them seemed like the lights had been going back and forth, which reflecting back on it--This happened four months ago. But reflecting back on it, it may have possibly been one of them passing another one or something that moved out in the lane.

"But to see these lights going back and forth caused me to be a little alarmed. And that many lights all in one group. I just--I didn't realize it was motorcycles or what it was until they had gotten quite a bit nearer to me."

(Emphasis supplied.) Struble testified that when he passed them he was driving "approximately 20 miles an hour. And I had moved up as far to the right on the road as I could." At that point, all of the motorcycles were clearly in their own lane. Struble could not be sure that he passed the Outsiders motorcycle club.

Gardner also was not sure that the group that they passed was the Outsiders. She testified that she first noticed the motorcycles when she saw numerous headlights that appeared to be heading towards her and Struble in their lane of travel. At that point, Struble slowed down considerably and moved over to the right side of the road. When she and Struble passed them, however, all of the motorcycles were inside their own lane.

The state objected to that testimony. It argued that the evidence was irrelevant, and, even if it were relevant, it should still be excluded under OEC 403 because the prejudicial value of the evidence outweighed its probative value. The state argued that the evidence was irrelevant for at least two reasons. First, it argued that defendant had failed to establish that the motorcyclists that Struble and Gardner saw were the Outsiders. Second, it argued that the evidence was irrelevant because there was no evidence that the motorcyclists that Struble and Gardner saw were driving recklessly. In other words, even if Struble and Gardner saw the Outsiders, their testimony did not make any fact at issue more or less probable. When the witnesses could see the motorcyclists clearly, they were all in their proper lane for travel. If they were, at some point, traveling in the eastbound as opposed to the westbound lane, there was no evidence that they were doing so improperly or illegally. They could have been passing someone, or "avoiding an animal in the road or doing anything." Therefore, the state argued, their testimony "is just way too attenuated to be relevant."

The trial court...