concurring.
I am troubled by the majority opinion because it appears to hold that separate acts of ordinary negligence by defendant occurring within two and a half miles of each other suffice to prove beyond a reasonable doubt that defendant committed criminal negligence. The trial court and the majority conclude that, although defendant was not aware that he previously had been driving over the center line, the pattern of driving observed by the Mansers when combined with the facts of the accident resulting in the victim’s death prove that he should have been aware of the risk that his driving was creating.
In State v. McLaughlin, 42 Or App 215, 219-220, 600 P2d 474 (1979), we held that, when the legislature enacted ORS 161.085(10), it did not intend to permit a lesser quantum of proof to go to a jury in a criminal case than would be permitted in a civil case involving gross negligence as defined by case law and ORS 30.115(2).1 See also State v. Wilcox, 216 Or 110, 336 P2d 797 (1959).
In Gonzalez v. Curtis et ux, 217 Or 561, 339 P2d 713 (1959), the court affirmed a judgment notwithstanding the verdict based on a lack of evidence of gross negligence. It stated:
“The plaintiff argues that the defendant-driver was guilty of several acts of ordinary negligence and, therefore, this combination of acts presents a jury question; citing Burrows v. Nash, [199 Or 114, 259 P2d 106 (1953)]. It should be pointed out, in this connection, that, although it may be shown that the occurrence was preceded by several acts of ordinary negligence, it is only when all of these acts combined with the existing circumstances show a fool-hardy attitude on the part of the driver that gross negligence has been established.” 217 Or at 563. (Citations omitted.)
*165Although “recklessly”2 and “criminal negligence” are defined differently by statute, the two standards encompass the same types of behavior formerly characterized as “gross negligence.” State v. McLaughlin, supra, 42 Or App at 219 n 4. Without a reckless mental state or a conscious indifference to the safety of others, mere inadvertence, brief inattention or error in judgment does not constitute gross negligence. Smith v. Barry, 37 Or App 319, 325, 587 P2d 483 (1978).
In this case, Robin Manser testified regarding defendant’s driving just before the accident:
“The station wagon made some very large swerves into the other lane. At one point he swerved clear in the other lane in front of a white Volkswagen and went back into his own lane to avoid getting into an accident. He would swerve in and out of his own lane. At times he would be in his own lane swerving. A— he must have swerved three, four times, large swerves into the other lane.”
From that testimony, the trier of fact could have found beyond a reasonable doubt that defendant had a conscious indifference to the safety of others as he drove down the highway, swerving into the oncoming lane on four occasions immediately preceding the accident. Crossing the center line on more than one occasion does not constitute gross negligence unless the conduct is accompanied by the requisite mental state. However, in this case, an inference of gross negligence may be drawn from the combination of negligent acts.
ORS 30.115(2) provides:
“ ‘Gross negligence’ refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized by conscious indifference to or reckless disregard of the rights of others.”
ORS 161.085(9) provides:
“ ‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards 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 disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”