STATE v. FINCHER (2020)

Defendant appeals a judgment of conviction for first-degree manslaughter, ORS 163.118; one count of DUII, ORS 813.010; five counts of third-degree assault—DUII, ORS 163.165(2)(b); and eight counts of recklessly endangering another person, ORS 163.195. Defendant drove drunk, killing a two-year-old girl and injuring five other people. Defendant challenges the denial of his motion to suppress evidence of two blood draws—one medical and one taken later at the direction of law enforcement—and the trial court's decision to admit crash-scene photographs of the deceased child victim. We affirm.

Medical blood draw. Defendant first contends that the trial court erred in denying his motion to suppress evidence of the blood draw taken for medical purposes at the hospital after the collision. Defendant acknowledges that our decision in State v. Miller, 284 Or. App. 818, 395 P.3d 584, vac'd, 362 Or. 300, 408 P.3d 1079 (2017), would foreclose his assignment of error had the Supreme Court not vacated that decision due to the defendant's death. He urges us to abandon the rationale in Miller and take a different approach here. The state asks us to readopt our holding in Miller and reject defendant's contentions. We are not persuaded that our decision in Miller was incorrect and, for that reason, expressly readopt it here. Under Miller, the trial court's denial of defendant's motion to suppress the evidence of the medical blood draw is correct.

Law enforcement blood draw. Defendant next challenges the denial of his motion to suppress evidence of a second blood draw taken at the request of law enforcement. Any error, however, is harmless. The evidence of the second blood draw did not add anything to the evidence of the medical blood draw and had little likelihood of affecting the verdict in view of our determination that the trial court properly admitted the medical blood draw.

Photographs of child victim. Defendant finally contends that the trial court abused its discretion under OEC 403 by concluding that the probative value of crash-scene photographs of the child victim was not substantially outweighed by the risk of unfair prejudice posed by those photographs. See State v. Baughman, 361 Or. 386, 406, 393 P.3d 1132 (2017) (review of trial court's balancing under OEC 403 for abuse of discretion). We conclude that the trial court's exercise of discretion was within the range of permissible choices available to it. See State v. Gibson, 299 Or. App. 582, 589, 451 P.3d 259 (2019) (“[T]he trial court also would have acted within its discretion had it reached a contrary conclusion about its admissibility, but, on this record, that was not the only permissible legal outcome available to the court.”). In reaching this conclusion, we affirmatively reject the state's arguments that the court's placement of the photographs in an envelope so that the jury would have the option of not looking at them is relevant to the question of whether the court abused its discretion under OEC 403. That inquiry necessarily must rest on the presumption that a jury will consider all properly admitted evidence, whether or not enclosed in an envelope, and we do not understand the court to have relied on the envelope procedure in its OEC 403 analysis.

Affirmed.

PER CURIAM