dissenting.
I disagree with the majority’s conclusion that the state produced sufficient “other proof’ to corroborate defendant’s confession or to prove the corpus delicti.
The record in this case is sparse. A police officer was called to the scene of an accident. When he arrived there were no cars in the street. There were some cars parked in a parking lot next to the street. Defendant was in the parking lot. He told the officer that his car was a 1976 Toyota two-door sedan and that he had stopped to make a left turn when his car was hit from behind. In response to the officer’s questions, defendant said that he had a restricted driver’s license and that he was driving in violation of the restrictions. That is all we know.
The majority’s attempt to embellish the facts does *264not create sufficient “other proof.” The fact that defendant gave the officer his driver’s license is as consistent with his being a witness as it is with his being a driver. His failure to identify himself as a witness is not dispositive. His acknowledgment of his license restrictions was in direct response to the officer’s questions and was accompanied by the acknowledgment that he was driving beyond the restrictions. That statement is confessional and cannot be used to corroborate a confession. ORS 136.425(1); See State v. Stevenson, 98 Or 285, 291, 193 P 1030 (1920). There was no physical evidence that defendant even had a car at the accident scene. There was no indication of how he reacted to the citation. The majority speculates when it states that defendant was silent. The state produced no witnesses other than the police officer. In short, the state’s case is based solely on the testimony of the police officer whose testimony, in turn, was based on what defendant told him.1
In the absence of facts, the majority labels defendant’s statements regarding his car and the accident as admissions and contends that those statements offer “other proof’ to corroborate the confession. However, the majority fails to identify the confession to be corroborated. I assume that the majority intends that defendant’s statement that he was driving outside the scope of the license is the confession. However, the majority’s failure to delineate the confessional statement illustrates its own discomfort with the distinction between admissions and confessions. See State v. Howard, 102 Or 431, 451, 203 P 311 (1921).
The basic distinction between a confession and an admission is that a confession is an acknowledgment of guilt, whereas an admission is a statement of fact from which guilt may be inferred. State v. Reinhart, 26 Or 466, 477-78, 38 P 822 (1895). “If a person * * * details the circumstances of and his connection with the commission of the act for the purposes of explaining his conduct, so as to rebut the inference of a criminal intent, such a statement is not a confession of his guilt.” State v. Heidenreich, 29 Or 381, 45 P 755 (1896). An admission, of fact from which guilt is directly deducible is a confession, *265but statements which are consistent with innocence are admissions. State v. Porter, 32 Or 135, 143-47, 49 P 964 (1897); see State v. Weston, 102 Or 102, 115-17, 201 P 1083 (1921); State v. Brinkley, 55 Or 140, 105 P 708 (1909). The problem comes in attempting to apply those tests profitably to an actual statement.
In this case, defendant confessed that he was driving in violation of his license restrictions. His statements regarding his participation in the accident were, therefore, made in recognition of that fact and are part of the confession.2 Defendant’s statements were an affirmation rather than a denial of his participation in the accident. See State v. Heindenreich, 29 Or 381, 45 P 755 (1896); State v. Allen, 79 Or App 674, 680-81, 720 P2d 761 (1986). Contrary to the majority’s assertions, there is no bright line to distinguish which of defendant’s statements are admissions and which are confessions. In the absence of proof other than defendant’s statements, I would hold that the statements are not sufficiently separate from the confession to corroborate the confession.
Even if defendant’s statements are considered admissions, it is not clear that they are legally sufficient to corroborate the confession. In State v. Lerch, 296 Or 377, 398 n 21, 677 P2d 678 (1984), the court specifically declined to decide whether admissions can corroborate a confession. Additionally, in this case they do not factually tend to prove or support the inference that defendant was driving. State v. Lerch, supra.
Without defendant’s confession, there is a complete failure of proof on the element of driving. The motion for judgment of acquittal should have been granted. I respectfully dissent.
Warden, P. J., and Newman, J., join in this dissent.The officer attempted to testify about statements made by other drivers at the scene. The trial court sustained defendant’s objection to the admission of those statements. We therefore do not consider them as corroboration.
Because driving while suspended is a strict liability crime, any statement regarding defendant’s participation in the crime is an acknowledgment of criminal conduct and is a confession itself. See State v. Heindenreich, 29 Or 381, 45 P 755 (1896); State v. Porter, 32 Or 135, 49 P 964 (1897).