State v. Joseph Richard Civil, A158212

• Decision Date: 11 January 2017
• Docket Number: A158212
• Citation: 388 P.3d 1185,283 Or.App. 395
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Joseph Richard CIVIL, Defendant-Appellant.
• Court: Oregon Court of Appeals

283 Or.App. 395

388 P.3d 1185

STATE of Oregon, Plaintiff-Respondent,

v.Joseph Richard CIVIL, Defendant-Appellant.

A158212

Court of Appeals of Oregon.

Argued and submitted August 30, 2016.

January 11, 2017

John Evans, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General.

Before Duncan, Presiding Judge, and DeVore, Judge, and Haselton, Senior Judge.

HASELTON, S.J.

Defendant appeals a judgment of conviction of one count of unauthorized use of a vehicle (UUV), ORS 164.135, entered after a bench trial. He asserts that, although he was charged with UUV solely under ORS 164.135(1)(a), the evidence at trial related only to ORS 164.135(1)(c) —and, because of that asymmetry, he was entitled to acquittal.¹ Central to defendant's challenge is his assertion that State v. Cox , 96 Or.App. 473, 772 P.2d 1385, rev. den. , 308 Or. 315, 779 P.2d 618 (1989), in which we construed the scope of ORS 164.135(1)(a), "was wrongly decided and should be overruled." For the reasons that follow, we conclude that our essential reasoning in Cox was so fundamentally flawed as to render that holding "plainly wrong." Accord Farmers Ins. Co. v. Mowry , 350 Or. 686, 697–98, 261 P.3d 1 (2011) (addressing considerations pertaining to adherence to stare decisis with respect to statutory construction); State v. Olive , 259 Or.App. 104, 107–08, 312 P.3d 588 (2013) (applying "plainly wrong" standard with respect to court's precedent construing statute). Accordingly, we reverse.

Defendant's challenge, as raised during closing argument in a trial to the court, was, albeit not explicitly so denominated, in the nature of a motion for judgment of acquittal. See, e.g. , State v. Hawkins , 280 Or.App. 26, 29, 380 P.3d 979 (2016) ; State v. Habibullah , 278 Or.App. 239, 242 n. 1, 373 P.3d 1259 (2016). Consequently, we state the material facts in the light most favorable to the state. State v. Markwell , 281 Or.App. 196, 197, 383 P.3d 285 (2016).

In early January 2014, defendant started working as a "driver" for Farm Fresh Foods, which was in the business of door-to-door meat sales.² According to Farm Fresh's local warehouse manager, Talsma, "product is given to drivers on consignment, and * * * they pay a daily truck charge [of $20], like a sublease on the vehicles." Typically, drivers would come to the warehouse in Milwaukie in the morning, inventory would be loaded into freezers in the vehicles (either trucks or vans), and invoices would be issued. Vehicles were scheduled to be returned to the warehouse at the end of the day, between 8:00 and 9:00 p.m.—and, in all events, "no later than 10[p.m.], and definitely not overnight."

On the morning of April 15, 2014, defendant contacted Talsma about the possibility of working as a driver that day. Another driver, McClure, had just called to tell Talsma that his vehicle had broken down, so Talsma told defendant that he "could work with [McClure] that day." Specifically, Talsma had a vehicle (a van) fully loaded at the Milwaukie warehouse and released the van to defendant with instructions, and on the understanding, that defendant would pick up McClure at his home in Northeast Portland and that he and McClure would work together that day. Defendant was aware that he was to return that van to the warehouse that evening.

Defendant did not, however, pick up McClure, much less work with him in making meat sales that day. Nor did defendant return the van that night. Instead, the van was found abandoned, but undamaged, five days later, in a parking lot in Happy Valley, several miles from the Milwaukie warehouse. Most of the meat inside was spoiled and unsalvageable.

Defendant was charged by indictment with one count of UUV and one count of theft in the second degree, ORS 164.045. The UUV count (Count 1) alleged:

"The defendant, on or about April 15, 2014, in Clackamas County, Oregon, did unlawfully and knowingly take, operate, ride in, and/or exercise control over a vehicle, without the consent of the owner, Farm Fresh Foods."

The operative allegation replicates the applicable text of ORS 164.135(1)(a). See 283 Or.App. at 396 n. 1.

The matter was tried to the court. After the submission of the evidence, substantiating the facts recounted above, the prosecutor, in his initial closing argument, summarized the state's theory of "unauthorized use":

"[T]he sole authorization for [defendant] was to use the vehicle to go pick up a coworker. He's driving all over town that day * * * and obviously never returns the vehicle.

"* * * The vehicle's only discovered several days later. His initial use beyond not picking up the coworker was unauthorized, but his unauthorized use continued."

The prosecutor explicitly referred to Cox , describing its facts, and concluded:

"I think [the circumstances in Cox ] are clearly analogous to this. And like I said, I think his use was technically unauthorized the moment he didn't pick up [McClure], but then he continued to go about possession of the vehicle."

Defense counsel, in closing, asserted, inter alia , that defendant must be acquitted because the evidence established, at most, unauthorized use under ORS 164.135(1)(c ) (emphasis added)—which had not been pleaded in the indictment:

"[T]aking the case most favorable to the State, the State has * * * mispled.

"* * * * *

"Subsection (c) is saying, having * * * custody of a vehicle * * * pursuant to an agreement with the owner * * * whereby such vehicle is to be returned to the owner at a specified time, the person knowingly retains or withholds possession thereof without consent of the owner for so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement.

"* * * * *

"And the State has pled it under (1)(a). So even if this Court does believe that there was some sort of criminal conduct on behalf of [defendant], the charging instrument doesn't address what subsection that conduct would come under."

Defense counsel concluded by reiterating that subsection (1)(c) was the pertinent provision but that "the State hasn't pled it in that manner." The court then observed, "True. They're stuck with what they pled." Defense counsel did not address Cox in closing.

Finally, in rebuttal closing, the prosecutor characterized defendant's contention as "simply a red herring." Instead, he reiterated that "[defendant] clearly used the vehicle or operated it, or exercised control over it without consent of the owner in this case in a number of ways over a number of days."

The court adjourned to "take a look at [the] authorities" and, upon reconvening, noted that it had "read the cases and the [UUV] statute and * * * analyzed the facts in detail." The court then, without further comment, found defendant guilty of UUV.³

On appeal, defendant renews his contention that the evidence related only to ORS 164.135(1)(c), and not to ORS 164.135(1)(a), and that, because he had been charged only under the latter, he was entitled to an acquittal.⁴ Defendant acknowledges that Cox is to the contrary, in that it construed ORS 164.135(1)(a) so broadly as to encompass his conduct, but asserts that our statutory construction analysis there was so deficient that Cox must be overruled. In support of that contention, defendant offers a detailed deconstruction of the text, context, and legislative history of ORS 164.135.

The state responds that, although our holding in Cox antedated PGE v. Bureau of Labor and Industries , 317 Or. 606, 859 P.2d 1143 (1993),⁵ its analysis anticipated PGE and "faithfully reflected the text of ORS 164.135(1)(a) and tracked the stated purpose of [that] provision," including by reference to pertinent commentary. Consequently, the state asserts, defendant has failed to demonstrate that Cox was incorrectly decided—much less "plainly wrong," as required for this court to overrule its precedent—and, thus, Cox is dispositive.

Before engaging with the parties' contentions regarding the construction of ORS 164.135(1)(a), it is not only useful, but essential, to address two threshold matters. First , precisely what was the holding in Cox ? That is, what did Cox hold—and not hold? Second , what types of "unauthorized use" were substantiated in this record? That is, does the record disclose that defendant's use of the van violated the terms of his agreement with the owner beyond the failure to timely return the vehicle, as described in ORS 164.135(1)(c) ? The resolution of those two inquires will, in turn, define the relationship of Cox to the present dispute—and, even more particularly, inform whether, or to what extent, our statutory construction in Cox can be deemed "plainly wrong" as applied to these circumstances.

We turn to Cox , with the preface of reiterating the pertinent text of ORS 164.135(1) :

"A person commits the crime of unauthorized use of a vehicle when:

"(a) The person takes, operates, exercises control over, rides in or otherwise uses another's vehicle * * * without consent of the owner ;

"(b) Having custody of a vehicle * * * pursuant to an agreement between the person or another and the owner thereof whereby the person or another is to perform for compensation a specific service for the owner involving the maintenance, repair or use of such vehicle, * * * the person intentionally uses or operates it, without consent of the owner, for the person's own purpose in a manner constituting a gross deviation from the agreed purpose; or

"(c) Having custody of a vehicle * * * pursuant to an agreement with the owner thereof whereby such vehicle * * * is to be returned to the owner at a specified time, the person knowingly retains or withholds possession thereof without consent of the owner

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