FILED: October 28, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DOUGLAS LEROY RIDDLE,

Appellant.

(95CR3069FE; CA A93789)

En Banc*

Appeal from Circuit Court, Douglas County.

William Lasswell, Judge.

On respondent's petition for reconsideration filed September 14, 1998. Opinion filed August 26, 1998. 155 Or App 526, P2d   (1998).

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Ann Kelley, Assistant Attorney General, for petition.

No appearance contra.

DE MUNIZ, J.

Petition for reconsideration allowed; opinion modified and adhered to as modified. Defendant's conviction for driving under the influence of intoxicants is affirmed; defendant's convictions for criminally negligent homicide and assault are reversed and remanded for new trial.

*Linder, J., not participating.

DE MUNIZ, J.

The state petitions for reconsideration of our opinion, 155 Or App 526, ___ P2d __ (1998), arguing that our disposition was flawed because the evidentiary error that provided the basis for the reversal of defendant's convictions for criminally negligent homicide, fourth degree assault, and driving while intoxicated was, in fact, a harmless error as to the conviction for driving while intoxicated. Although the state failed to make that point on appeal, we nonetheless consider it on reconsideration, because we conclude that we should have considered the issue in the harmless error portion of our opinion.

In our opinion, we concluded that the trial court improperly admitted testimony by an accident reconstruction expert that fell within the attorney-client privilege. Id. at 540-41. We further concluded that the error was not harmless because, although the state presented undisputed evidence that defendant had been driving, and very strong evidence that defendant had been drinking heavily, "the key issue was whether a factor beyond defendant's control, i.e., a failure of the steering mechanism, was the actual cause of the collision." Id. at 541. On reconsideration, we agree with the state that the improperly admitted evidence of the accident reconstructionist pertained only to the convictions for criminally negligent homicide and assault. Defendant's conviction for driving under the influence of intoxicants did not depend on the cause of the collision. As to defendant's conviction for driving under the influence of intoxicants, we conclude that there is no likelihood that the improperly admitted evidence affected the verdict. Accordingly, we modify the disposition of this case.

Petition for reconsideration allowed; opinion modified and adhered to as modified. Defendant's conviction for driving under the influence of intoxicants is affirmed; defendant's convictions for criminally negligent homicide and assault are reversed and remanded for new trial.


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