No. 460 July 3, 2024 565

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

DANIEL DIONICUS RUIZ,

Defendant-Appellant.

Lincoln County Circuit Court

20CR60152, 21CR23070; A178789 (Control), A178790

Sheryl Bachart, Judge.

Submitted May 14, 2024.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Kristin A. Carveth, Deputy Public Defender, 

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and E. Nani Apo, Assistant Attorney 

General, filed the brief for respondent.

Before Tookey, Presiding Judge, Egan, Judge, and Kamins,

Judge.

TOOKEY, P. J.

Affirmed.
566 State v. Ruiz

TOOKEY, P. J.

Defendant challenges his convictions for firstdegree manslaughter and third-degree assault and, alternatively, his sentences for third-degree assault. His six 

assignments of error reduce to two questions: (1) whether 

there was legally sufficient evidence in the record to allow 

a factfinder to find that he acted with “extreme indifference to the value of human life” and (2) whether the trial 

court plainly erred when it allowed the state to rely on the 

same evidence to prove both an element of a crime and a 

sentencing-enhancement fact. For the following reasons, we 

affirm.

Denial of Motions for a Judgment of Acquittal. In 

his first five assignments of error, defendant challenges his 

manslaughter and assault convictions, arguing that the trial 

court erred in denying his motions for judgment of acquittal on each, because there was insufficient evidence that he 

acted “under circumstances manifesting extreme indifference to the value of human life.” ORS 163.118(1)(a) (defining first-degree manslaughter); ORS 163.165(1)(c) (defining 

third-degree assault). In reviewing the trial court’s rulings, 

we view the evidence “in the light most favorable to the state 

to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could 

have found the essential element of the crime beyond a reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d 

431 (1994), cert den, 514 US 1005 (1995).

We have interpreted the phrase “under circumstances manifesting extreme indifference to the value of 

human life” to mean “unconcern in a very high degree, 

exceeding the ordinary, that an act might cause the death 

of a human being.” State v. Downing, 276 Or App 68, 82, 366 

P3d 1171 (2016). The phrase does not “create an additional 

culpable mental state.” State v. Boone, 294 Or 630, 634, 

661 P2d 917 (1983). Rather, it describes a level of recklessness “that is characterized by a willingness to commit an 

‘extremely dangerous act’ and an indifference as to whether 

that act could cause the death of another human being.” 

Downing, 276 Or App at 83 (quoting Boone, 294 Or at 638)).
Cite as 333 Or App 565 (2024) 567

Here, viewed in the light most favorable to the state, 

the evidence allowed the jury to find (1) that defendant stayed 

up all night drinking beer before driving several people from 

Corvallis to Newport; (2) that defendant drank alcohol while 

driving to Newport; (3) that defendant continued drinking 

alcohol once he arrived at Newport, including almost half a 

pint of whiskey; (4) that defendant then drove a truck full of 

people back to Corvallis while he had a blood alcohol content 

of approximately 0.08 to 0.16 percent; (5) that defendant was 

driving about 90 miles an hour in a 55-mile-an-hour zone; 

and (6) that defendant crossed over the centerline and struck 

an oncoming vehicle. Further, there was evidence that defendant had been arrested on three prior occasions for driving 

while under the influence of intoxicants and had attended a 

recent employee meeting at work about the problem of drinking on the job. In light of that evidence, we conclude that a 

reasonable factfinder could find that defendant demonstrated 

a willingness to commit an extremely dangerous act and an 

indifference as to whether that act could cause the death of 

another human being. Thus, we conclude that the trial court 

did not err in rejecting defendant’s motion for a judgment of 

acquittal on the charged offenses.

Sentencing Enhancement Facts. In his sixth assignment of error, defendant argues that the trial court plainly 

erred when it allowed the state to use the same evidence to 

prove an element of third-degree assault and a sentencingenhancement fact, which was used to justify departure 

sentences for the assault convictions. Specifically, the state 

used evidence, that defendant had been arrested for DUII 

three times in the past and had his license suspended twice 

for failing breath tests, to prove that defendant acted with 

“extreme indifference to the value of human life” (an element 

of third-degree assault) and to prove that defendant “demonstrated disregard for laws” (a sentencing-enhancement fact). 

He argues that using the same evidence for both purposes 

violated OAR 213-008-0002(2), which provides, in part:

“(2) If a factual aspect of a crime is a statutory element 

of the crime ***, that aspect of the current crime of conviction may be used as an aggravating or mitigating factor 

only if the criminal conduct constituting that aspect of the 
568 State v. Ruiz

current crime of conviction is significantly different from 

the usual criminal conduct captured by the aspect of the 

crime.”

(Emphasis added.)

The state argues that any error is not plain, because 

it is not obvious and beyond reasonable dispute that the 

use of evidence to prove both an element and a sentencingenhancement fact is prohibited by that rule. See State v. 

Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (“For an 

error to be plain error, it must be *** obvious and not reasonably in dispute[.]”).

We agree with the state. By its plain text and with 

limited exception, OAR 213-008-0002(2) prohibits using 

“factual aspects” that serve as an “element” of a crime to 

justify a departure sentence for that crime. Thus, generally, if a crime has as an element the use of a dangerous 

weapon, then the use of a dangerous weapon cannot be used 

as a sentencing-enhancement fact. See State v. Fox, 262 

Or App 473, 485, 324 P3d 608, rev den, 356 Or 163 (2014) 

(holding that “violation of public trust” could not serve as 

a sentencing-enhancement fact because an element of the 

crime was the threat to abuse the defendant’s position as 

a public servant). But it is not obvious that the use of the 

same evidence to prove both an element and a sentencingenhancement fact is prohibited by the rule. In other words, 

it is not obvious that using prior DUII arrests as circumstantial evidence of defendant’s willingness commit an 

extremely dangerous act without regard to the risk of death 

it posed to others means that the state cannot also use those 

arrests to prove a different fact for purposes of imposing 

a departure sentence—i.e., that defendant displayed a disregard for the law. Accordingly, the requirements for plain 

error are not satisfied. We therefore reject defendant’s sixth 

assignment of error.

Affirmed.