FILED: April 20, 2005
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
DUANE DALLES SCHLENDER,
20 02 18522; A120594
Appeal from Circuit Court, Lane County.Maurice K. Merten, Judge. Argued and submitted September 28, 2004. Ingrid A. MacFarlane argued the cause and filed the brief for appellant. Jennifer Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jill Smith, Assistant Attorney General. Before Landau, Presiding Judge, and Brewer, Chief Judge,* and Deits, Judge pro tempore.
DEITS, J. pro tempore.Affirmed.
*Brewer, C. J., vice Leeson, J. pro tempore.
DEITS, J. pro tempore
"'Recklessly,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."There is no doubt that defendant's conduct caused the death of another human being. Additionally, defendant does not contest that driving his car through the wall of a building created a risk of such nature and degree that disregard thereof constituted a gross deviation of the standard of care that a reasonable person would observe in the situation. The only question is whether there is evidence from which a rational juror could infer that defendant was aware of and disregarded a substantial risk that his conduct would cause someone's death. Because the statute requires that defendant be aware of the risk, our inquiry must focus on defendant's actual perceptions at the time of the crash. State v. Curtiss, 193 Or App 348, 352-53, 89 P3d 1262, rev den, 337 Or 282 (2004). However, a finding of recklessness does not require a finding that defendant knew that someone was in the building. The statute requires only awareness of a substantial risk that someone could be in the building and be killed. A factfinder may infer from circumstantial evidence that a defendant was aware of a substantial risk, so long as that inference reasonably flows from the predicate facts. State v. McBean, 189 Or App 235, 241, 74 P3d 1127 (2003). Defendant argues that the facts in this case resemble those in McBean, where we held that an inference of recklessness did not reasonably flow from the predicate facts. In McBean, the defendant's friend set some grass on fire with his cigarette lighter. The defendant stomped on the fire, in what he later characterized as an attempt to put it out. Instead, the fire spread. The defendant was convicted of reckless burning. On appeal, the state argued that the following facts constituted sufficient evidence of recklessness: (1) the defendant was aware that his friend had started two fires earlier in the week, (2) the defendant reported neither the earlier fires nor the third, and (3) the defendant equivocated about whether he saw that his friend was carrying a cigarette lighter. We concluded that those facts bore no logical relationship to the defendant's state of mind when he stomped on the fire. Accordingly, we held that the evidence there was insufficient to establish recklessness. Id. at 242. Defendant argues that, as in McBean, there was no evidence that he was aware of a substantial risk that driving his car through the wall of the restaurant would cause another human being's death. We disagree. The state offered both direct and indirect evidence of defendant's culpable mental state. As noted above, a police officer testified that defendant said that "maybe he knew someone was in the building." Further, both the officer and defendant testified that defendant was aware that people work at all hours in buildings that contain regularly operating businesses. The state also presented evidence that defendant would have been able to see several lights on in the restaurant, the victim's van parked out front, and the victim himself walking around inside the restaurant. Unlike the facts in McBean, the facts in this case logically and directly support an inference that defendant saw signs of life in and around the building and realized that there was a substantial possibility that someone was inside. Cf. State v. Petersen, 17 Or App 478, 487, 522 P2d 912, rev'd in part on other grounds, 270 Or 166, 526 P2d 1008 (1974) (jury could infer that the defendant drag-racer was aware of a substantial risk of causing death where evidence indicated that he was familiar with automobiles and automobile racing and defendant acknowledged that he knew at the time that he should not have engaged in the race). Although defendant's testimony--that he did not see the victim or the victim's van--as well as other circumstances--such as defendant's apparent shock upon learning of the victim's death--supported a contrary inference, it was up to the jury to choose among those competing inferences. State v. Bivins, 191 Or App 460, 467, 83 P3d 379 (2004) ("[T]he established facts may support multiple reasonable inferences and, if they do, which inference to draw is for the jury to decide."). Moreover, the jury was not required to believe defendant's testimony. See Hindman v. Coy, 207 Or 279, 284, 295 P2d 1097 (1956) ( jury is the sole judge of credibility and is entitled to disbelieve any witness). In sum, when viewed in the light most favorable to the state, the evidence in this case was sufficient for a rational juror to find that defendant was aware of and disregarded a substantial risk that there was someone inside the restaurant who could be killed by his conduct. Accordingly, the trial court did not err in denying defendant's motion for a judgment of acquittal. Affirmed.