Filed: November 8, 2012

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

DEVIN S. LEWIS,

Petitioner on Review.

(CC CR090164; CA A144772; SC S059739)

On review from the Court of Appeals.*

Argued and submitted June 13, 2012.

Jona J. Maukonen, Harrang, Long, Gary, Rudnick, P.C., Portland, argued the 

cause and filed the briefs for petitioner on review. With her on the briefs were James E. 

Mountain, Jr., and Sivhwa Go, Portland.

Andrew M. Lavin, Assistant Attorney General, Salem, argued the cause and filed 

the brief for respondent on review. With him on the brief were John R. Kroger, Attorney 

General, and Anna M. Joyce, Solicitor General.

Before Balmer, Chief Justice, and Durham, De Muniz, Kistler, Walters, and 

Linder, Justices.**

LINDER, J.

The decision of the Court of Appeals and the judgment of the circuit court are 

affirmed.

*Appeal from Yamhill County Circuit Court, John L. Collins, Judge. 244 Or App 

693, 258 P3d 538 (2011).

**Landau, J., did not participate in the consideration or decision of this case.
1

1 LINDER, J.

2 This case requires us to examine the legal standard for the mental state of 

3 criminal negligence and to assess, when tested by that standard, whether the record in this 

4 case is sufficient to support defendant's conviction of criminally negligent homicide. 

5 Defendant, while driving a tractor-trailer truck, collided with the victim's catering truck 

6 from the rear. The collision pushed the victim's truck into the oncoming lane of traffic,

7 where it was struck by a logging truck. The victim died at the scene. The state charged 

defendant with criminally negligent homicide. ORS 163.145(1).18 Before trial, defendant 

9 moved to suppress evidence of the manner in which he had been driving 10 to 15 minutes 

10 before the collision. The trial court denied the motion. Defendant then waived his right 

11 to a jury and proceeded with a bench trial. At the close of the state's case, defendant 

12 moved for a judgment of acquittal, which the court denied. The trial court subsequently 

 

1 ORS 163.145(1) provides:

"A person commits the crime of criminally negligent homicide 

when, with criminal negligence, the person causes the death of another 

person."

ORS 161.085(10) provides: 

"'Criminal negligence' or 'criminally negligent,' when used with 

respect to a result or to a circumstance described by a statute defining an 

offense, means that a person fails to be aware of 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 the failure to be aware of it 

constitutes a gross deviation from the standard of care that a reasonable 

person would observe in the situation."
2

1 convicted defendant. Defendant appealed, and the Court of Appeals affirmed without 

2 opinion. State v. Lewis, 244 Or App 693, 258 P3d 538 (2011). For the reasons set out 

3 below, we affirm.

4 We begin with the pertinent facts, some of which we discuss in additional 

5 detail later in our opinion. In describing the facts, we state them in the light most 

6 favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P3d 198 (2007).

7 Defendant, a licensed commercial truck driver, was driving an empty 

8 tractor and trailer westbound on Highway 18 in Yamhill County. The victim, also 

9 traveling westbound, was driving a heavily loaded catering truck (a converted pickup) 

10 and had stopped in the westbound lane, ahead of defendant, to make a left turn onto 

11 Christensen Road. In that area, Highway 18 consists of one lane in each direction. The 

12 Oregon Department of Transportation has designated the segment of Highway 18 where 

13 the collision occurred as a "safety corridor," meaning it has a higher than normal crash 

14 rate, which has prompted officials to take special measures (e.g., enhanced fines and 

15 larger signage) to encourage more cautious and safe driving. The day was overcast, and 

16 the road was wet, but visibility was good. 

17 As the catering truck approached the intersection with Christensen Road, it 

18 rolled to a slow, controlled stop. Two logging trucks approached from the opposite 

19 direction, traveling eastbound. The driver of the first logging truck, Gedenberg, saw the 

20 catering truck slow and come to a full stop at the intersection, with its left front turn 

21 signal blinking. Gedenberg, who was traveling about 45 miles per hour, passed the fully 

22 stopped catering truck as he went through the intersection. Throughout the drive that 
3

1 morning, Gedenberg had been conversing by CB radio with Olsen, the driver of the 

2 second logging truck. Gedenberg immediately warned Olsen about the catering truck, 

3 concerned that the driver would try to make the turn after Gedenberg passed him, in front 

4 of Olsen.

5 As Gedenberg drove past the catering truck, he saw defendant's truck 

6 ahead, traveling towards the still stopped catering truck. Gedenberg testified that he 

7 could see defendant for approximately five seconds before their trucks passed and that 

8 defendant, during that time, was looking down at his feet or lap and not at the road. As 

9 their trucks passed, Gedenberg saw defendant suddenly look up, surprised and startled to 

10 see the catering truck stopped ahead. Defendant, who had been traveling at 55 miles per 

11 hour (the speed limit for that section of the highway) reacted by slamming on his brakes, 

12 which locked up and put the truck into a skid.

13 As defendant’s truck skidded forward, the cab missed the catering truck, 

14 but the left-rear tires of the tractor and the left side of the trailer struck the rear corner of 

15 the catering truck, catapulting it into the path of Olsen's logging truck. The resulting 

16 collision killed the victim (the driver of the catering truck). Defendant's truck, 

17 meanwhile, continued to skid forward another 60 feet before coming to a stop in a ditch 

18 on the far side of the intersection. Defendant's truck incurred minor damage from 

19 clipping the catering truck and going into the ditch.

20 Two witnesses who also had been driving westbound on Highway 18 on 

21 the date of the accident, Mr. and Mrs. Morrison, testified about their observations of 

22 defendant's driving for six or seven miles before the collision. Mrs. Morrison first 
4

1 noticed defendant at the intersection of Highway 18 and Highway 99, at which point 

2 defendant turned fast onto Highway 99 and "just flew across" the railroad tracks after the 

3 turn. Mrs. Morrison, who was driving, rarely comments on the driving of others, but she 

4 called defendant's driving to her husband’s attention, who had been doing paperwork in 

5 the passenger's seat. As defendant and the Morrisons approached McMinnville on 

6 Highway 18, there were two westbound lanes of travel. The right-hand lane, in which 

7 defendant was traveling, eventually became a turn-only lane into McMinnville. The left8 hand lane, in which the Morrisons were traveling, bypassed McMinnville and continued 

9 towards the coast. A sign marked the turn-only lane, but defendant did not merge into the 

10 left-hand lane as he passed that sign. Instead, he remained in that turn-only lane until the 

11 "last second." Then, just as the turn-only lane split off into McMinnville, defendant 

12 abruptly cut into the left-hand lane without signaling and forced traffic in that lane to 

13 come to a near stop. 

14 Once in the left-hand lane, defendant continued westbound. Ahead of him 

15 was a small school bus. Defendant began traveling "awfully close" to the school bus. 

16 Mrs. Morrison told her husband: "I hope there [are] no kids in that bus because he's right 

17 on them." By that point, the Morrisons were paying attention to everything defendant did 

18 because his driving "stuck out like a sore thumb." As the school bus exited into 

19 McMinnville, defendant's truck moved further ahead of the Morrisons when a car

20 between the Morrisons' car and defendant's truck turned off the highway. The Morrisons 

21 lost sight of defendant shortly before the collision and, as a result, did not see defendant's 

22 truck as it skidded toward the intersection and hit the catering truck.
5

1 Just after the accident, police interviewed defendant and obtained his 

2 statement. Defendant stated that he had been following the catering truck about three 

3 truck-lengths behind (i.e., about 180 feet) when the catering truck stopped "suddenly." 

4 Defendant told police that the catering truck had no running lights, no brake lights, its left 

5 turn signal was not flashing, and there simply was no way for defendant to avoid the 

6 catering truck except to do what he did. According to defendant, what he did was "swing 

7 wide" and immediately steer his truck to the right and into the ditch to avoid hitting the 

8 catering truck.

9 Defendant's report was inconsistent with the physical evidence of the 

10 collision. One of the state's accident reconstruction experts, Trooper Pierce, concluded 

11 that defendant began braking about 382 feet before the collision. Pierce calculated that 

12 distance based on defendant's speed, the skid marks left by defendant's truck, defendant's 

13 likely reaction time, and the time it takes for air brakes on a tractor and trailer to engage. 

14 Given where the skid marks began (about 169 feet from the collision) and the delays 

15 involved before the skid marks would have started, Pierce concluded that it was 

16 physically impossible for defendant to have been only three truck lengths behind the 

17 catering truck when defendant hit his brakes. 

18 The physical evidence further established that defendant did not "swing 

19 wide" to the right, contrary to his statement to police. The skid marks left by defendant's 

20 truck were long and straight, up to the area of the impact. Where they began, the right 

21 side of defendant's trailer was on the fog line and the left side was well within his lane of 

22 travel. Just before the point of impact, the right tire skid marks "just barely" crossed over 
6

1 the fog line and onto the shoulder of the road. Defendant's truck may have drifted to the 

2 right slightly either due to gravity (from the curvature of the road) or because the truck 

3 was oriented in that direction at the moment that defendant hit his brakes. But the only 

4 point at which the truck "swerved" to the right was at the moment of impact. Momentum 

5 then carried defendant's truck into the right-hand ditch. Pierce concluded, based on the 

6 physical evidence, that defendant did not react to the stopped catering truck by attempting 

7 to steer to the right of it and that, throughout the skid, there had been no "steering input."

8 Finally, both witnesses to the collision and expert testimony established 

9 that the catering truck's brake lights and running lights were on, and its left turn signal 

10 was flashing before the collision. In particular, Gedenberg, when he first noticed the 

11 catering truck as it pulled to a stop, saw the catering truck's front running lights on and its 

12 left turn signal flashing. After passing defendant's truck, Gedenberg looked in his rear 

13 view mirror, and specifically noticed that the catering truck's tail lights and brake lights 

14 were on before the collision. Gedenberg did not recall if the rear left turn signal was 

15 flashing. But the expert testimony established that the rear bulb, which served both as a 

16 brake light and a left turn light, was operative at the moment of the collision, suggesting 

17 that the catering truck's rear left signal light would have been flashing as well.

18 At trial, the essential dispute was whether the evidence supported a finding, 

19 beyond a reasonable doubt, that defendant had acted with the mental state of criminal 

20 negligence in causing the fatal collision. On defendant's motion for judgment of 

21 acquittal, the trial court concluded that the evidence created an issue of fact in that regard

22 and denied defendant's motion. At the conclusion of the trial, the court, sitting as the 
7

1 finder of fact, found that defendant acted with the requisite criminally negligent state of 

2 mind and, therefore, found defendant guilty as charged. Rather than summarily announce 

3 its verdict, however, the trial court explained its reasoning in detail.

4 The trial court identified multiple factors that influenced its finding that 

5 defendant acted with criminal negligence. They included: 

6 (1) Defendant was a professional commercial driver operating a heavy 

7 vehicle, and he was trained in the "increased risks that go along with 

8 operating a vehicle of that nature on a public highway."

9 (2) Defendant's trailer was empty, making it difficult to stop, and defendant 

10 knew that fact.

11 (3) The highway was wet. 

12 (4) The highway had only two lanes, which meant defendant was driving 

13 under circumstances where he knew that he had less room to maneuver.

14 (5) Defendant's unsafe driving before the collision, as witnessed by other 

15 drivers, showed that he had been driving beforehand with a mental state 

16 that displayed a lack of caution and prudence.

17 (6) The collision occurred in a designated safety corridor.

18 (7) Defendant had some familiarity with the route and was aware of both 

19 the greater risks of that area of highway and the need for driving with 

20 greater attention and care.

21 (8) Defendant was looking down before the collision and appeared 

22 shocked when he saw the catering truck, which was evidence that his lack 

23 of attention was protracted rather than just momentary.

24 (9) The catering truck had its turn signal on, was clearly visible to other 

25 drivers on the road, and did not stop abruptly.

26 (10) Defendant could have swerved to the right, where the shoulder was 

27 widened and paved, and likely could have avoided the collision entirely, 

28 but defendant did not do so. 

29 The court found that defendant's failure to pay attention to the road and his driving was, 
8

1 given the totality of the circumstances, a "gross deviation" from the standard of care that 

2 a reasonable person would have observed in a similar situation and therefore constituted

3 criminal negligence. See ORS 161.085(10) (defining "criminal negligence"). Defendant 

4 appealed his conviction, and, as noted, the Court of Appeals affirmed without opinion. 

5 On review, defendant first argues that the trial court erred in admitting the 

6 Morrisons' testimony regarding his driving before the collision because that evidence was 

7 irrelevant and unfairly prejudicial. His principal argument, however, is that -- even if the 

8 Morrisons' testimony was correctly admitted -- the evidence that the state presented was 

9 insufficient to support a conclusion that he acted with the requisite mental state of 

10 criminal negligence. We begin with defendant's argument that the Morrisons' testimony 

was not relevant under OEC 402.211 

12 Defendant argues that the Morrisons' observations of his driving 

13 approximately 10 to 15 minutes before the accident were not relevant because the 

14 specific conduct that the Morrisons described played no part in the collision. Defendant 

15 reasons that evidence of prior driving would be admissible only if the state could 

 

2 OEC 402 provides:

"All relevant evidence is admissible, except as otherwise provided 

by the Oregon Evidence Code, by the Constitutions of the United States 

and Oregon, or by Oregon statutory and decisional law. Evidence which is 

not relevant is not admissible." 

Evidence is relevant if it has "any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it 

would be without the evidence." OEC 401.
9

1 demonstrate that the specific conduct that the Morrisons had witnessed -- which 

2 defendant characterizes as "driving fast while making a turn, making an unsignaled lane 

3 change, and closely following a school bus" -- continued up to the time of the collision 

4 and contributed to the collision. The state responds that the Morrisons' observations of 

5 defendant's driving occurred close in time to the collision and were evidence of his 

6 ongoing lack of awareness and care in his driving from that time until the collision. 

7 The trial court concluded that the prior driving evidence was relevant, and 

8 we agree. In State v. Betts, 235 Or 127, 133, 384 P2d 198 (1963), the defendant was 

9 convicted of negligent homicide under former ORS 163.091 (1957), repealed by Or Laws 

10 1971, ch 743, § 432, for killing a passenger in his car when he crashed after rounding a 

11 corner at 90 miles per hour while intoxicated. The defendant objected to testimony that,

12 before the accident, he had left "ten feet of tire marks" when accelerating from a stop. Id. 

13 The defendant argued that that testimony was not relevant to his state of mind when, one 

14 and a half hours later, he took a corner at 90 miles per hour while intoxicated and caused 

15 the death of the victim. Id. This court disagreed, holding that, in general, evidence of a 

16 person's driving before the time and place of an accident is relevant to that person's state 

17 of mind at the time of the accident. Id. This court did not, in Betts, require that the prior 

18 conduct be the same specific conduct involved in causing the later accident. The 

19 question was whether the prior conduct (speeding from a stop) logically permitted an 

20 inference of an ongoing state of mind.

21 The holding in Betts is consistent with the legal test for relevancy. The 

22 threshold for relevance is low. State v. Clegg, 332 Or 432, 441-42, 31 P3d 408 (2001). 
10

1 Relevant evidence under OEC 401 is evidence that has "any tendency to make the 

2 existence of any fact that is of consequence to the determination of the action more 

3 probable or less probable than it would be without the evidence." The Morrisons' 

4 observations met that standard. The Morrisons observed defendant's driving as they 

5 followed defendant on Highway 18 for about six or seven miles, throughout which 

6 defendant drove in a way that placed others on the road at significant risk. Logically, 

7 defendant’s actions could have been due to his persistent failure to pay attention to his 

8 driving and thus to his distracted and inattentive state of mind. For instance, his sudden 

9 lane change near McMinnville permitted a conclusion that he did not see the sign 

10 warning that the lane would split off and that he realized where he was only moments 

11 before arriving at the split. Tailgating, likewise, can result from a driver's failure to 

12 watch or focus on the road. The Morrisons' observations thus were logically relevant to 

13 the issue of defendant's state of mind at the time of the collision. See State v. Salas14 Juarez, 349 Or 419, 428-29, 245 P3d 113 (2010) (evidence that person responded with 

15 verbal threat to minor altercation in bar an hour and a half before assault at issue relevant 

16 to show that person's ongoing "angry state of mind," which factfinder could consider in 

17 determining who committed otherwise unrelated violent assault). 

18 Defendant also argues that the Morrisons' testimony, even if relevant, was 

inadmissible because it was unfairly prejudicial under OEC 403.319 The trial court, in 

 

3 OEC 403 provides:
11

1 rejecting defendant's OEC 403 argument, observed that, "[i]f there is any danger of 

2 prejudice, it might be that the jury might think that, well, maybe [defendant] did make a 

3 bad pass or engage in some poor driving earlier and, therefore, he must have engaged in 

4 the same at the time that led to this collision." The trial court concluded, however, that 

5 the minimal risk of the jury considering the Morrisons' testimony for that purpose did not 

6 outweigh the probative value of the evidence on the issue of defendant's state of mind. 

7 See State v. Lyons, 324 Or 256, 280, 924 P2d 802 (1996) (unfair prejudice under OEC 

8 403 means evidence has tendency to cause trier of fact to make decision on an improper 

9 basis; that tendency must "substantially" outweigh probative value to render relevant 

10 evidence inadmissible). The trial court did not abuse its discretion in so concluding and 

11 thus did not err. See State v. Titus, 328 Or 475, 481, 982 P2d 1133 (1999) (appellate 

12 court reviews OEC 403 ruling for abuse of discretion).

13 We turn to whether the trial court erred in denying defendant's motion for a 

14 judgment of acquittal and subsequently finding defendant guilty of criminally negligent 

15 homicide. Because the parties disagree regarding the meaning of "criminal negligence" 

16 as defined in ORS 161.085(10), the mental state required for criminally negligent 

17 homicide, we begin with that issue. As noted, "[a] person commits the crime of 

18 criminally negligent homicide when, with criminal negligence, the person causes the 

 

"Although relevant, evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice, confusion of 

the issues, or misleading the jury, or by considerations of undue delay or 

needless presentation of cumulative evidence." 
12

1 death of another person." ORS 163.145(1). "Criminal negligence," when used with 

2 respect to a prohibited result defined by statute -- in this case causing the death of another 

3 person --

4 "means that a person fails to be aware of a substantial and unjustifiable risk 

5 that the result [the death of another person] * * * will occur * * *. The risk 

6 must be of such nature and degree that the failure to be aware of it 

7 constitutes a gross deviation from the standard of care that a reasonable 

8 person would observe in the situation." 

9 ORS 161.085(10). 

10 On the spectrum of culpable mental states, criminal negligence falls 

11 between negligence and recklessness:

12 "Negligence is the least demanding; it requires only that the defendant 

13 should have known about a risk. Criminal negligence similarly considers 

14 whether the defendant should have known about the risk, but it also 

15 requires that the risk be a 'gross deviation from the standard of care that a 

16 reasonable person would observe in the situation.' ORS 161.085(10). 

17 Recklessness demands proof of a different and more culpable mental state. 

18 Although the nature of the risk is the same as for criminal negligence ('a 

19 gross deviation from the standard of care that a reasonable person would 

20 observe'), the standard is no longer what the defendant should have known; 

21 instead, a defendant must have been 'aware of and consciously 

22 disregard[ed]' that risk. ORS 161.085(9)." 

23 Morehouse v. Haynes, 350 Or 318, 332-33, 253 P3d 1068 (2011) (De Muniz, C. J., 

24 concurring) (emphases in original; footnotes omitted). 

25 In Morehouse, this court addressed the differences between the mental 

26 states of negligence and recklessness in the context of a civil action arising out of an 
13

automobile collision.41 In that case, we concluded that the plaintiff's evidence was 

2 sufficient to create a jury question as to whether the defendant's driving was reckless. Id. 

3 at 328. More specifically, we determined that a jury could find that the defendant's 

4 conduct -- entering a sharp curve at 20-25 miles per hour above the recommended speed 

5 while taking his eyes off the road to tune the radio -- created a "substantial and 

6 unjustified risk" of harm to persons or property and that disregarding that risk was a 

7 "'gross deviation' from what a reasonable driver would do in the same situation." Id. at 

8 331. In this case, we address a related issue: whether the facts are sufficient to create a 

9 jury question regarding the mental state of criminal negligence, a degree of culpability 

10 that, as noted, is greater than negligence, but less than recklessness.

11 Defendant argues that the standard for criminal negligence established by 

12 ORS 161.085(10) is "much higher than for civil negligence and requires not only 

13 nonperception of a risk but also seriously blameworthy conduct creating that risk." 

14 Defendant notes that the Oregon legislature modeled ORS 163.145(1) (prohibiting 

15 criminally negligent homicide) and ORS 161.085(10) (definition of criminal negligence)

16 on New York statutes, which in turn followed the rationale of the Model Penal Code. See

17 Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, 

 

4 Although Morehouse was a civil action, ORS 161.085 was pertinent there 

because, if the defendant had been driving "recklessly" as defined by that criminal code 

statute, the plaintiff, who had been driving uninsured, was entitled to recover 

noneconomic damages despite his uninsured status (a recovery otherwise barred by ORS 

31.715(1)).
14

1 Final Draft and Report ("Commentary") §§ 11 & 91, 10-11 & 91-92 (July 1970) (so 

2 stating). Defendant also points out that the legislative history indicates that one of the 

3 committees charged with revising the criminal code contemplated that the case law of 

4 New York and other states that had adopted the Model Penal Code would be useful in 

interpreting Oregon's version of those same statutes.55 See Minutes, Criminal Law 

6 Revision Subcommittee No 1, Dec 18, 1968, 2 (so stating). 

7 Defendant relies primarily on People v. Boutin, 75 NY2d 692, 696, 555 

8 NE2d 253, 254 (NY 1990), in which the New York Court of Appeals held that criminally 

9 negligent homicide requires both a "failure to perceive a risk of death, [and] some serious 

10 blameworthiness in the conduct that caused it." In that case, the defendant had been 

11 convicted of criminally negligent homicide after he failed to see the flashing lights of a 

12 police car and collided with the car at full speed, killing the officer and another person. 

13 Id. at 694-95, 555 NE2d 253-54. In reversing his conviction, the court held that "[t]he 

14 unexplained failure of a driver to see the vehicle with which he subsequently collided 

15 does not, without more, support a conviction for the felony of criminally negligent 

 

5 When Oregon adopts a statute modeled after another jurisdiction, an 

interpretation of that statute by that jurisdiction's highest court rendered before the 

adoption of the statute by Oregon is considered the interpretation of the adopted statute 

that the Oregon legislature intended. State v. Stockfleth/Lassen, 311 Or 40, 50, 804 P2d 

471 (1991). The New York cases that defendant cites, however, were decided after

Oregon adopted its revisions to the criminal code in 1971. Accordingly, we consider 

them only for the persuasive value of their analysis. See State v. Warner, 298 Or 640, 

650, 696 P2d 1052 (1985) (examining later case law from New York as persuasive 

authority when Oregon statute based on New York statute). 
15

1 homicide." Id. at 694, 555 NE2d at 253. Although the defendant likely had been 

2 negligent in failing to see the police car, he had not "engaged in any criminally culpable 

3 risk-creating conduct" and thus could not be convicted of criminally negligent homicide. 

4 Id. at 697, 555 NE2d at 255-56. Defendant urges us to follow Boutin and require that a 

5 defendant's conduct be "seriously blameworthy" in order to find criminal negligence. 

6 Defendant argues that civil cases in Oregon decided under the "guest 

7 passenger" statute also support his position that a defendant's conduct must be "seriously 

8 blameworthy" to prove the mental state of criminal negligence. First, he asserts that the 

9 standards for "gross negligence" under the now-repealed guest passenger statute and 

"criminal negligence" under ORS 161.085(10) are comparable.610 Defendant notes that a 

11 finding of gross negligence under the guest passenger cases generally required finding 

 

6 As this court explained in State v. Hill, 298 Or 270, 279, 692 P2d 100 

(1984), "[p]rior to the criminal code revision of 1971, gross negligence and recklessness 

comprised the same mental state for purposes of the automobile guest statute, as well as 

for criminal liability." The 1971 revisions to the criminal code distinguished between 

criminal negligence (what previously had been called "gross negligence") and 

recklessness. Id. "Recklessness" now requires a higher mental state than gross 

negligence did under the guest passenger statute because the defendant must be "aware of 

and consciously disregard[ ]" the applicable risk. Morehouse, 350 Or at 323 (quoting 

ORS 161.085(9)). The standard for "gross negligence" and "recklessness" under the 

guest passenger cases, however, do not provide an exact analog for the definition of 

"criminal negligence" in ORS 161.085(10). Compare Williamson v. McKenna, 223 Or 

366, 394-95, 354 P2d 56 (1960) (adopting Restatement of Torts § 500 (1934) to define 

both gross negligence and recklessness) with ORS 161.085(10) (defining criminal 

negligence). Nevertheless, in the guest passenger cases, this court attempted to draw a 

principled distinction between conduct that was merely negligent and conduct that 

demonstrated a more culpable state of mind, and we occasionally have looked to those 

cases for guidance on the issue. See, e.g., Morehouse, 350 Or at 326-27, 330. 
16

1 that the defendant possessed an "attitude of indifference to [the] consequences" of his or 

2 her conduct. Keefer v. Givens, 191 Or 611, 622, 232 P2d 808 (1951). In defendant's 

3 view, an "attitude of indifference" parallels the notion of "seriously blameworthy" 

4 conduct adopted by the New York Court of Appeals to distinguish criminal negligence 

5 from ordinary negligence. Defendant draws several examples from New York and 

6 Oregon case law to illustrate conduct that is "seriously blameworthy" or that exhibits an 

7 "attitude of indifference," including exceeding the speed limit and failing to heed various 

8 warning signs. See, e.g., Boutin, 75 NY2d at 696-97, 555 NE2d at 254-55; Keefer, 191 

9 Or at 622-24. 

10 The state responds that defendant attempts to insert additional elements into 

11 the definitions of "criminal negligence" and "criminally negligent homicide" by requiring 

12 the state to prove that defendant's conduct was seriously blameworthy or that defendant 

13 exhibited an attitude of indifference. In the state's view, the definition of "criminal 

14 negligence" in ORS 161.085(10) and the definition of "criminally negligent homicide" in 

15 ORS 163.145(1) do not focus on any specific conduct by defendant. Rather, those 

16 statutes, by their terms, require only that the state prove that defendant's conduct --

17 driving in a way that caused the victim's death -- was accompanied by the mental state of 

18 criminal negligence: that defendant "fail[ed] to be aware of a substantial and 

19 unjustifiable risk" of the victim's death and that the failure to be aware of that risk was a 

20 "gross deviation" from the standard of care that a reasonable person would have observed 

21 in the same circumstances. According to the state, then, neither statute requires it to 

22 prove that the conduct that caused the victim's death was itself "blameworthy."
17

1 The state also argues that the guest passenger cases decided before the 

2 enactment of the criminal negligence definition in 1971 do not support defendant's 

3 contention that the state must prove that defendant exhibited an "attitude of indifference 

4 to consequences." The state argues that requiring an "attitude of indifference" assumes 

5 "some level of awareness" -- as opposed to the statute's emphasis on a lack of awareness -

6 - and the "conscious disregard" of the potential consequences of risky behavior. The state 

7 asserts that defendant's proffered interpretation thus is inconsistent with ORS 

8 161.085(10), which contemplates that a defendant may be criminally negligent even if the 

9 defendant is not aware of the risks of his or her conduct and does not "consciously 

10 disregard" those risks. Moreover, the state argues, the 1971 revision to the criminal code 

11 explicitly distinguished criminal negligence from recklessness by requiring an awareness 

12 and conscious disregard of risk for recklessness, but only requiring that a defendant 

13 "should have been aware" of the risk for criminal negligence. See Commentary § 11 at

14 10 (so stating). 

15 We agree with substantial parts of the state's argument regarding the 

16 definition of "criminal negligence." Contrary to defendant's assertions, ORS 161.085(10) 

17 does not require the state to prove that defendant engaged in "seriously blameworthy" 

18 conduct or that defendant's conduct exhibited an "indifference to consequences." 

19 Although conduct that is seriously blameworthy in some moral sense or that demonstrates 

20 indifference to consequences could, in a particular factual setting, certainly provide proof 

21 of a criminally negligent state of mind, the statute itself requires only that the risk of a 

22 particular result from defendant's conduct be "substantial and unjustifiable" and that 
18

1 failure to be aware of that risk be a "gross deviation" from the standard of care a 

2 reasonable person would observe. In short, whether conduct exhibits a criminally 

3 negligent state of mind will depend, in large part, on the factual context in which the 

4 conduct occurs. That is so because the ordinary negligence standard of care that provides 

5 the benchmark for determining whether the defendant's conduct was a "gross deviation" 

6 must derive from the conduct of a "reasonable person" in that factual context. Whether 

7 the conduct is "blameworthy" -- essentially a moral judgment -- standing alone, is 

8 relevant, but not dispositive, in determining whether the conduct constituted a "gross" 

9 deviation from the conduct of a reasonable person. 

10 To insert a requirement that the conduct must be "seriously blameworthy" 

11 or that the defendant be "indifferent to consequences" would, as the state argues, shift 

12 attention away from the elements identified in the definition of criminal negligence -- the 

13 lack of awareness of risk and the deviation from the reasonable person standard of care. 

14 That said, not every deviation from the standard of care and not every failure to be aware 

15 of the risk involved constitutes criminal negligence. Only if the failure to be aware of the 

16 risk is a "gross" deviation from that of a reasonable person can a defendant be found to 

17 have acted with criminal negligence. 

18 We return to the facts of this case to evaluate whether the evidence 

19 presented at trial was sufficient to support the trial court's finding, as trier of fact, that 

20 defendant acted with the mental state of criminal negligence. In making that evaluation, 

21 we of course must view the evidence in the light most favorable to the state, resolving all 

22 conflicts in the state's favor and granting the state the benefit of all reasonable inferences 
19

1 that the evidence will support. State v. Cervantes, 319 Or 121, 125, 873 P2d 316 (1994). 

2 In challenging the sufficiency of the evidence, the crux of defendant's 

3 argument is that, at best for the state, defendant was merely inattentive for a brief period 

4 of time in causing the accident. That brief inattention, defendant argues, amounted to 

5 mere negligence as a matter of law, rather than a "gross deviation" from the standard of 

6 care that a reasonable person would have observed under the circumstances, as criminal 

7 negligence requires. Defendant emphasizes that, at trial, the state's own experts testified

8 that defendant's speed had not been a factor in the collision, that he had not followed the 

9 catering truck too closely, and that he was not under the influence of alcohol or drugs. 

10 Defendant asserts that there was no evidence that he could have prevented the accident --

11 once he became aware of the victim's truck -- had he taken different actions. 

12 We agree that, if this case involved only a driver's brief inattention to his 

13 driving and nothing more, the evidence likely would fall short of establishing criminal 

14 negligence. In that respect, this court's decision in Morehouse is instructive. As we have 

15 described, Morehouse involved recklessness as defined by ORS 161.085(9), which is a 

16 higher, more culpable mental state than criminal negligence. The court in Morehouse 

17 concluded that the evidence created a jury question on recklessness because the defendant 

18 was familiar with the road on which he was driving (and so inferentially he knew about 

19 the sharp turn); he entered the curve at a speed 20-25 miles above the "advisory" --

20 although not legally mandated -- speed; and while he did so, he glanced down for about a 

21 second to tune the radio. Morehouse, 350 Or at 331, 321. The court determined that the 

22 combination of the defendant's failure to heed the cautionary speed and his one-second 
20

1 glance downward while doing so was enough to allow a jury to find (whether or not it in 

2 fact would) that the defendant's failure to exercise care was a "gross deviation" from what 

3 a reasonable driver would do in the same situation. Id. at 331. And, given those facts, 

4 the defendant not only should have known of the risk that he created (as criminal 

5 negligence requires), but he in fact knew of that risk (as recklessness requires). Id.

6 Likewise, this case involves more than mere inattention. Here, although 

7 defendant was not speeding unlawfully, he was traveling in a "safety corridor," and thus a 

8 particularly hazardous section of road, at the maximum legally permissible speed. In 

addition, defendant's truck was unloaded, which reduced its stopping capability,79 and the 

10 road was wet, which reduced friction for braking. Cars qualify as inherently dangerous 

11 weapons. State v. Hill, 298 Or 270, 277, 692 P2d 100 (1984). Commercial semi-trucks, 

12 given their bulk and weight, are less maneuverable, less stoppable, and more deadly in a 

13 collision than an ordinary car. The record in this case bears that out. Car brakes engage 

14 instantly, slowing the car as soon as the driver pushes the brake pedal. Air brakes, like 

15 those on defendant's truck, do not engage and begin slowing the struck until a full two 

16 seconds after the driver first pushes the brake pedal. A professional commercial driver, 

 

7

The record establishes that an unloaded commercial truck with air brakes 

cannot stop as quickly as a heavily loaded one. The reason for that somewhat 

counterintuitive fact is that, when equipped with air brakes, the "brakes, tires, springs, 

and shock absorbers on heavy vehicles are designed to work best when the vehicle is 

fully loaded." 2012-2013 Oregon Commercial Driver Manual (Driver and Motor Vehicle 

Services), at 2-12. In the case of a commercial truck equipped with air brakes and 

traveling at 55 miles per hour, "an average driver under good traction and brake 

conditions" will have a total minimum stopping distance of over 450 feet. Id. at 5-7.
21

1 of course, would know those steering and stopping limitations of his vehicle. Defendant 

2 would have known all of the above facts, or at least a jury could so find. Defendant's 

3 failure, as a licensed commercial truck driver, to watch the road ahead and the traffic on it 

4 for any significant period of time, even if momentary, while traveling in a safety corridor, 

5 under wet-road conditions, with an unloaded truck at the maximum legal speed, refutes 

6 defendant's position that this is a case of inattention, nothing more, and thus a case of 

7 mere negligence.

8 More fundamentally, however, we disagree with defendant that the only 

9 conclusion that the record supports is that defendant's inattention was merely brief or 

10 fleeting. In that regard, the parties spar at some length over the significance of 

11 Gedenberg's testimony, who said that, as he passed the stopped catering truck and 

12 continued eastbound, he had been able to observe defendant for about five seconds as 

13 defendant approached from the opposite direction, throughout which time defendant had 

his eyes cast downward and was not watching the road ahead.814 The trial court, who was 

 

8 Briefly described, the dispute over Gedenberg's five-second estimate arises 

because, given the speeds at which his truck and defendant's truck were traveling, 

Gedenberg would have been nearly 700 feet away from defendant when he would have 

first noticed defendant. The parties disagree whether a finder of fact could find that 

Gedenberg could see defendant well enough at that distance to reliably describe him as 

looking down, instead of at the road, from the time Gedenberg first noticed defendant's 

truck. Defendant essentially argues that such a conclusion belies common sense and 

common experience, while the state responds that no evidence refuted Gedenberg's 

ability to see defendant from that distance. Because of the adequacy of the evidence even 

without Gedenberg's time estimate, we need not resolve the parties' disagreement in that 

regard. 
22

1 the trier of fact, found Gedenberg credible, but was unsure that his estimate of 5 seconds 

2 was accurate. In the trial court's view, however, whether Gedenberg could see defendant 

3 throughout the 5 seconds was "academic," because the evidence as a whole persuaded the 

4 trial court that defendant in fact was inattentive for a protracted and significant period of 

5 time. As the trial court expressly described it, "if there was one phrase that might 

characterize this case in the court's view[, it is] gross inattention."96

7 Because the record amply supports the trial court in that regard, we need 

8 not decide whether Gedenberg's testimony alone could establish how long defendant had 

9 failed to pay attention to the road ahead of him. First, the physical circumstances of the 

10 collision demonstrate the protracted time during which defendant was distracted or 

11 otherwise inattentive. The catering truck came to a slow, controlled stop as Gedenberg

12 approached the intersection. It was fully stopped by the time Gedenberg, traveling at 45 

13 miles per hour, passed it. As Gedenberg passed defendant's truck farther down the road, 

14 defendant looked up, surprised to see the catering truck stopped ahead, and slammed on 

15 his brakes. From the physical evidence at the scene (principally, the skid marks), the 

16 accident reconstruction expert determined that that "moment of perception" for defendant 

17 happened about 382 feet from the intersection. At the speed that Gedenberg's truck was

18 traveling, it would have taken 5.78 seconds for him to travel from the stopped catering 

 

9

The trial court made those remarks at sentencing. But they are consistent 

with, if merely more succinct than, the remarks that the trial court made in rendering its 

verdict of guilt.
23

1 truck to the point where Gedenberg saw defendant first look up and notice the catering 

truck.10 2 The trier of fact could readily infer from defendant's shocked expression that 

3 defendant did not see the stopped catering truck throughout that time, and that the reason 

4 he did not see it was that he was not looking at the road ahead. 

5 The Morrisons' testimony was a further basis on which the trier of fact 

6 could find that defendant was distracted and inattentive for a protracted time. As earlier 

7 described, the Morrisons followed defendant on Highway 18 for six or seven miles, 

8 losing sight of him shortly before the collision. Throughout the time that the Morrisons 

9 were within sight of defendant, his driving was consistent with that of someone who was

10 not paying attention to the road ahead of him. We have already described that evidence 

11 at some length and need not do so again here. It suffices to observe that, based on the 

12 evidence of defendant's earlier driving, a rational factfinder could conclude that 

13 defendant's inattention as he approached the catering truck was not just momentary or 

14 fleeting, but was instead the continuation of an ongoing distracted and inattentive mental 

15 state that characterized his driving for much or all of that morning.

16 Finally, in finding that defendant acted with criminal negligence, the trial 

17 court concluded that "the l[i]nch pin to the case" was the avoidability of the fatal 

18 collision. And it was avoidable, the trial court concluded, in two independent ways. 

19 First, defendant could have avoided the collision had he paid attention to the road ahead 

 

10 At 45 miles per hour, Gedenberg was traveling about 66 feet per second. 

Time equals distance divided by rate: the distance traveled, 382 feet, divided by 66 feet 

per second, equals 5.78 seconds.
24

1 of him. Instead, however, he was distracted for a prolonged time, which was a 

2 particularly aggravated circumstance given defendant's training as a professional 

3 commercial driver, the highly dangerous vehicle he was driving, and the dangerous area 

4 of road he was on, among other factors. Second, the trial court found, defendant failed to 

5 avoid the accident as he could have, by steering to the right of the stopped catering truck 

6 onto the adjacent shoulder of the road. As the photographs and diagram of the accident 

7 site show, the adjacent shoulder in that area, designated on the exhibit of the collision as a 

8 "paved shoulder/by-pass," is much wider than along the highway generally. It is not an 

9 ordinary paved shoulder, but instead is nearly as wide as would be a second westbound 

10 lane of travel. The paved shoulder begins at just about the point where defendant first hit 

11 his brakes and continues to the end of the intersection. Because of the existence of the 

12 by-pass shoulder, ample pavement existed on the right side of the fog line for defendant 

13 to veer his truck to the right in a way that could have avoided the collision entirely.

14 There would have been a problem in doing that, however. As the exhibits 

15 in this case show, that shoulder narrowed again immediately after the intersection. At 

16 that point, a vehicle traveling at a fast rate of speed and unable to swerve back to the 

17 pavement would have found itself off hard pavement, and into the adjacent ditch area, 

18 where defendant in fact ended up when the impact of the collision caused his truck to 

19 swerve sharply to the right. Given his speed, and his delay in seeing the stopped catering 

20 truck, defendant could not veer to the right onto the paved by-pass shoulder and avoid the 

21 collision without risking driving off the pavement, possibly causing damage to his truck 

22 (as ultimately occurred) and delaying his own trip (as ultimately occurred as well).
25

1 That evidence caused the trial court to conclude that defendant acted with 

2 criminal negligence, not only because of his prolonged inattention before he noticed the 

3 catering truck, but because of his choice to not do more to avoid the collision:

4 "[A]s the photographs show, in my view, if some further steps had 

5 been taken, this collision still might [have] been avoided. 

6 "I believe that [defendant] did take some steps to try to avoid the 

collision, and he did steer the vehicle more to the right.[

11 7 ]

8 "But * * * it could have been steered over to the right sooner and 

9 into that lane.

10 "And I think, quite frankly, when the bottom line is read, [defendant] 

11 tried to thread the needle. He tried to go far enough to the right to avoid 

12 the collision and yet not so far to the right that he couldn't get back on the 

13 road.

14 "Had he gone a little further to the right, there is ample room at this 

15 point on this day and under those circumstances that this collision would * 

16 * * not have occurred. He had the room to do it. He could have done it. 

He didn't do it. And that's criminally negligent homicide."12 17

 

11 As earlier observed, there was no evidence that defendant, consistently with 

his statements to police investigators, steered sharply to the right to avoid the accident, 

and the trial court expressly found that defendant did not do that. The trial court also, 

however, evidently concluded that defendant's truck was to the right-hand side of the 

lane, with its outside tires on the fog line, because of some slight steering input by 

defendant before his brakes locked and the truck began to skid. As the remainder of the 

trial court's findings make clear, the trial court found that defendant tried to "thread the 

needle" so that his own trip would not be delayed, when he could have avoided the 

collision entirely.

12 The trial court made those observations at sentencing, but in doing so, was 

merely expanding on statements it made in rendering its verdict that were to the same 

effect. Nothing prevented the trial court from further explaining its verdict at the time of 

sentencing, and there is no reason why this court should disregard it. See, e.g., Strawn v. 

Farmers Ins. Co., 350 Or 336, 368, 258 P3d 1199 (2011) (trial court explanations and 

findings are generally very helpful to appellate review, and later explanation of earlier 
26

1 (Emphasis added.)

2 Thus, contrary to defendant's argument, there was evidence from which a 

3 rational factfinder could find -- and this record establishes that the factfinder did in fact 

4 so find -- that defendant could have taken actions to avoid the catering truck even after, 

5 due to his own inattentiveness, he noticed it too late in time to stop.

6 For those reasons, we conclude that the record in this case was sufficient to 

7 support the finding that defendant acted with criminal negligence. The trial court 

8 therefore correctly denied defendant's motion for judgment of acquittal.

9 The decision of the Court of Appeals and the judgment of the circuit court 

10 are affirmed.

 

ruling by trial court, where no statute precludes later explanation, should be given full 

consideration).