State v. Cruz-Gonzalez
Case #: A146564
Ortega, P.J. for the Court; Haselton, C.J.; and Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A146564.pdf
Criminal Law: Driving away after damaging property, even for two minutes, completes the crime of failure to perform the duties of a driver when property is damaged, and a jury instruction on attempt is not warranted.
Defendant appealed his conviction for failure to perform the duties of a driver when property is damaged, arguing that the trial court erred in declining to instruct the jury on an affirmative defense of renunciation and on attempted failure to perform the duties of a driver when property is damaged. Defendant was driving down a residential street when his car hit a parked and unattended car on the street. Defendant kept driving for two minutes, at which time he stopped 472 feet from the collision, called 911, and returned to the crash. He argued that the jury could have found that he stopped soon enough after the crash to fulfill ORS 811.700(1)(b)’s requirement that he stop "immediately." The State responded that Defendant's act of driving away was more than a "substantial step" meriting an attempt instruction; the act of driving away completed the crime. The Court of Appeals agreed with the State, interpreting "immediately," within the statute with its plain meaning: "without delay." The Court found that the two-minute lapse completed the crime, and no reasonable jury could find Defendant guilty of attempt. Accordingly, since renunciation is a defense to attempt, the trial court did not err in failing to instruct the jury as such. Affirmed.