State v. Eastep, 13CR0802
| Decision Date | 20 April 2016 |
| Docket Number | 13CR0802,A155418. |
| Citation | 371 P.3d 1287,277 Or.App. 673 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Thomas Eldon EASTEP, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Nora Coon, Certified Law Student, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Judy C. Lucas, Assistant Attorney General.
Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and FLYNN, Judge.
Defendant, who was convicted after a jury trial of unauthorized use of a vehicle (UUV), ORS 164.135, assigns error to the trial court's denial of his motion for judgment of acquittal (MJOA) and to the court's rejection of his requested jury instruction that, to establish the offense of UUV, the state must prove that the vehicle in question was “a ‘single operable unit.’ ” For the reasons explained below, we conclude that the trial court did not err and we therefore affirm the judgment of conviction.1
In reviewing the trial court's denial of defendant's MJOA, we view the evidence in the light most favorable to the state to determine whether a rational factfinder could have found the facts necessary to establish the elements of the crime beyond a reasonable doubt. State v. Jones, 223 Or.App. 611, 613, 196 P.3d 97 (2008), rev. den., 345 Or. 618, 201 P.3d 909 (2009). We review the trial court's rejection of defendant's requested jury instruction for legal error. State v. Wan, 251 Or.App. 74, 80, 281 P.3d 662 (2012). Defendant was entitled to the requested instruction if it correctly stated the law and if there was evidence, viewed in the light most favorable to defendant, to support it. Id.
Without the owner's consent, defendant sold a pickup for scrap metal and had it towed. Based on that conduct, he was charged with unauthorized use of a vehicle, as defined in ORS 164.135(1) :
The indictment alleged that defendant unlawfully and knowingly exercised control over a vehicle without the owner's consent. Defendant did not dispute that he exercised control over the pickup when he sold it and had it towed. But defendant offered evidence that, at the relevant time, the pickup was not operable, because the engine, transmission, and clutch were not working. Citing the Supreme Court's opinion in State v. Macomber, 269 Or. 58, 523 P.2d 560 (1974), defendant contended that, to establish that he exercised control over a “vehicle” for purposes of ORS 164.135(1), the state must prove that the pickup was operable.
In Macomber, the defendant was convicted of UUV under ORS 164.135 based on evidence that he possessed parts of a stolen truck. Id. at 59, 523 P.2d 560. The Supreme Court reversed his conviction. The court stated that “a violation of the statute would not be made out by proof of defendant's possession only of separate parts of the truck and that it would be necessary to prove the exercise of control over an integral operable vehicle.” Id. at 60, 523 P.2d 560. The court explained that there was “no evidence which either directly or by inference shows that defendant exercised control over the [stolen] truck as a single operable unit.” Id. at 61, 523 P.2d 560.2
Based on Macomber, defendant here sought an MJOA. He also requested an instruction that, to convict, the jury had to find that the pickup was a “single operable unit.”
The trial court rejected defendant's motion and declined to give the requested jury instruction, citing this court's opinion in State v. Blair, 54 Or.App. 228, 634 P.2d 491 (1981), which had interpreted Macomber to not impose a requirement of operability. In Blair, the defendant was found to have been attempting to start a stolen motorcycle. The motorcycle would not start because it had the wrong battery and there was no ignition key. The defendant was convicted of UUV under ORS 164.135. Citing Macomber, the defendant contended on appeal that he could not be convicted, because the motorcycle was not operable. In upholding the defendant's conviction in Blair, we distinguished Macomber.
We explicitly rejected the Macomber concurrence's understanding that the Macomber majority assumed that “the unauthorized use of a car without a battery or with a flat tire would not be prohibited by ORS 164.135.” Blair, 54 Or.App. at 231 n. 2, 634 P.2d 491. Id. We explained in Blair that, contrary to the view expressed by the concurrence, the rationale for the majority opinion in Macomber had not been the fact of inoperability but the fact that there was no single, assembled vehicle:
Blair, 54 Or.App. at 231, 634 P.2d 491 (emphasis in original).
The trial court in this case followed our reasoning in Blair in denying defendant's MJOA, explaining that Macomber turned on the fact that the vehicle had been disassembled—i.e., there was no single vehicle—and did not impose a requirement under ORS 164.135 that the vehicle be operable.
On appeal, defendant contends that Macomber in fact imposed a requirement of operability, that this case is controlled by Macomber, and that Blair is either distinguishable from or inconsistent with Macomber. The state responds that Blair's interpretation of Macomber is correct, because ORS 164.135 contains no requirement that a vehicle be operable. Further, the state contends, even if defendant's interpretation of Macomber and ORS 164.135 is plausible, Blair is not “plainly wrong” and should be adhered to. State v. Smith, 261 Or.App. 665, 678, 322 P.3d 1129, rev. den., 355 Or. 880, 333 P.3d 334 (2014) ().
We agree with the state that Blair is not plainly wrong. Blair's interpretation of the Supreme Court's opinion in Macomber as not imposing a requirement of operability is a plausible one. As we said in Blair, the text of ORS 164.135 does not contain a requirement that a vehicle be “operable.” 54 Or.App. at 231, 634 P.2d 491. Additionally, the legislative history does not reflect an intention to so limit the statute's application. As we noted in State v. Essig, 31 Or.App. 639, 644, 571 P.2d 170 (1977), rev. den., 281 Or. 323 (1978), the Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 143 (July 1970) reflects that the drafters of ORS 164.135 deliberately refrained from applying a restrictive definition of “vehicle.” See also State v. Lasky, 259 Or.App. 307, 310 n. 4, 314 P.3d 304 (2013), ( that the Commentary § 134 at 142–43, explains that “[t]he first draft of the [UUV] section limited its coverage to ‘motor-propelled’ vehicles only; however, the Commission believed that the proposal should also protect owners of such things as trailers, sailboats and gliders”). In the absence of a statutory definition, in Essig, we applied the “ordinary” meaning of the term “vehicle,” which we described as “a means of transporting something.” Id. at 644, 571 P.2d 170 ; see also State v. Keys, 41 Or.App. 379, 381, 597 P.2d 1266 (1979) (same). That ordinary meaning does not specify whether an object generally recognized as a vehicle must be “operable” to be a “vehicle” for purposes of the crime of UUV.3
Adhering to our holding in Blair, we conclude that ORS 164.135 does not require the state to prove that the vehicle over which defendant exercised control was operable. The trial court, therefore, did not err in declining to give defendant's requested jury instruction that the vehicle must be operable. And, based on the evidence that defendant sold and had towed a pickup without the owner's consent, the jury could find that defendant took control of a “vehicle” under ORS 164.135, despite the fact that the pickup was not operable. Therefore, the trial court did not err in denying defendant's MJOA.
Affirmed.
1 Defendant was also convicted of second-degree theft and false swearing; he does not challenge those convictions.
2 In a specially concurring opinion, Justice Tongue wrote:
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State v. Eastep
...significant disrepair and was not currently operable. The trial court disagreed, and the Court of Appeals affirmed. State v. Eastep , 277 Or.App. 673, 371 P.3d 1287 (2016). On review, defendant argues that, at least as used in the statute defining the offense of UUV, a "vehicle" must be cap......