State v. Smith

• Decision Date: 09 October 2002
• Citation: 55 P.3d 553,184 Or.App. 118
• Parties: STATE of Oregon, Respondent, v. William Tyler SMITH, Appellant.
• Court: Oregon Court of Appeals

55 P.3d 553

184 Or.App. 118

STATE of Oregon, Respondent, v. William Tyler SMITH, Appellant.

9906-45981; A108485.

Court of Appeals of Oregon.

Argued and Submitted August 28, 2002.

Decided October 9, 2002.

Peter Gartlan, Chief Deputy Public Defender, argued the cause for appellant. On the brief were David E. Groom, Acting Executive Director, Office of Public Defense Services, and Beth Corbo, Deputy Public Defender.

Holly A. Vance, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and BREWER, Judge.

LANDAU, P.J.

Defendant appeals a judgment of conviction for, among other things, reckless driving, ORS 811.140, based on an incident in which he was skateboarding on a public street. He argues that the trial court erred in denying his motion for a judgment of acquittal on the ground that a skateboard is not a "vehicle" within the meaning of ORS 811.140. The state argues that defendant's argument is not preserved and that, in any event, a skateboard is a "vehicle" within the meaning of the statute. We conclude that the issue was preserved and that a skateboard is not a "vehicle" within the meaning of ORS 811.140. We therefore reverse the reckless driving conviction.

The relevant facts are undisputed. Defendant struck a pedestrian as he was skateboarding down a sidewalk and into a crosswalk in downtown Portland. Both defendant and the pedestrian fell to the ground. Defendant grabbed the skateboard and ran away, followed by a police officer who had observed the incident. Defendant was arrested and charged with several offenses, including reckless driving.

At trial, defendant moved for a judgment of acquittal on the reckless driving charge. He argued that he could not be convicted of reckless driving because one does not "drive" a skateboard. According to defendant, one "drives" a motor vehicle, and a skateboard is not a motor vehicle within the meaning of ORS 811.140. The trial court suggested that ORS 801.590 defines "vehicle" more broadly than that. Defendant replied that ORS 811.140 and ORS 801.590 cannot be construed to apply to skateboards because that would produce an absurd result not likely intended by the legislature. The trial court denied the motion, and defendant was convicted of the charge.

On appeal, defendant argues that the trial court erred in denying the motion for judgment of acquittal, because ORS 801.026(6) expressly exempts from the definition of "vehicle" devices other than bicycles that are exclusively human powered. The state argues that defendant's argument is unpreserved because he failed to bring ORS 801.026(6) to the attention of the trial court and that, in any event, the statute does not apply to ORS 811.140. Defendant acknowledges that he failed to cite ORS 801.026(6). He argues that he still is entitled to raise it, however, because it is necessary "context" to the proper interpretation of ORS 811.140.

The decisions of the appellate courts of this state do not steer an even course when it comes to the rules of preservation. A number of opinions describe the rules of preservation in somewhat formalistic terms, requiring as an absolute minimum that parties preserve an "issue," while relaxing the requirement for a "source" for the claimed position and an "argument" in support of it. The lead decision is State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988). The problem, of course, is that the cases never have defined precisely what is meant by an "issue," as opposed to a "source" or an "argument." As a result, the cases closely following Hitz tend to have an ad hoc flavor to them and are sometimes hard to reconcile. Compare State v. Doern, 156 Or.App. 566, 572-73, 967 P.2d 1230 (1998) ("I take exception to that" is sufficient under Hitz to preserve objection without identifying a particular rule or other source), with State v. White, 119 Or.App. 424, 427, 850 P.2d 1158, rev. den., 317 Or. 486, 858 P.2d 876 (1993) ("I object to this line of questioning" held not sufficient to preserve objection, because it failed to identify a particular rule or other source).

More recently—although without disavowing Hitz—the courts have described the rule of preservation in more functional terms. Such cases emphasize the underlying purposes of preservation, in particular, fairness and efficiency. As the Supreme Court explained in State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000), "a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted."

Complicating the matter is a line of cases beginning with Stull v. Hoke, 326 Or. 72, 77, 948 P.2d 722 (1997), holding that "[i]n construing a statute, this court is responsible for identifying the correct interpretation, whether or not asserted by the parties." Shortly after deciding Stull, in Miller v. Water Wonderland Improvement District, 326 Or. 306, 309 n. 3, 951 P.2d 720 (1998), the Supreme Court went even further. In that case, the plaintiff had sought a declaration as to his right to inspect certain records of a water improvement district under the public records statute. On appeal before this court, we noted that another statute—pertaining specifically to water districts—might otherwise bear on the issue, but we declined to decide the case under that statute because the plaintiff had failed to claim any entitlement under it. Miller v. Water Wonderland Improvement District, 141 Or.App. 403, 405 n. 1, 918 P.2d 849 (1996). The Supreme Court reversed, holding that the fact that the plaintiff had failed to rely on the statute was not dispositive: "[T]he parties may not prevent a court from noticing and invoking an applicable statute by relying only on other sources of law." Miller, 326 Or. at 309 n. 3,951 P.2d 720.

Returning to this case, it is, frankly, not easy to determine whether defendant's claim of error has been preserved. Arguably, under Hitz, defendant has preserved an "issue," namely, whether a skateboard is a "vehicle" within the meaning of ORS 811.140. His failure to cite ORS 801.026(6) may be regarded as a failure to cite a specific "source," which, under Hitz, is not fatal. At the same time, it is arguable that defendant's objection was not specific enough to ensure that the trial court could identify the alleged error immediately and correct it, as Wyatt requires.

In the end, the fact that the matter in contention involves the applicability and construction of a statute leads us to conclude that it was adequately "preserved." First, under Stull and Miller, it is apparent that the ordinary rules of preservation are somewhat more lax when the case turns on the applicability and construction of a statute. As the Supreme Court stated in Miller, the failure of the parties to cite a statute does not prevent the courts from noticing it and giving it effect. 326 Or. at 309 n. 3, 951 P.2d 720. Second, apart from that, it is at least arguable that, having brought to the court's attention ORS 811.140 and the question whether a skateboard is a "vehicle" within the meaning of that statute, defendant fairly may rely on other statutes that bear on the meaning of that statute as "context." See State v. Carr, 319 Or. 408, 412, 877 P.2d 1192 (1994) (relying on statutes not cited by either party as context for statutory construction purposes).

We turn to the merits. ORS 811.140(1) provides, in part, that "[a] person commits the offense of reckless driving if the person recklessly drives a vehicle upon a highway * * * in a manner that endangers the safety of persons or property." The statute does not define "vehicle." ORS 811.140, however, is part of the "vehicle code." ORS 801.010(1). And ORS 801.590 provides that, for the purposes of the vehicle code, the term "vehicle" refers to "any device in, upon or by which any person or property is or may be transported or drawn upon a public highway and includes vehicles that are propelled or powered by any means." Both defendant and the state agree that a skateboard is a device on which a person may be transported and that, as such, it appears to fall within the definition of vehicle expressed in ORS 801.590.

Defendant claims that, notwithstanding the inclusive definition of "vehicle" in ORS 801.590, skateboards are subject to an express exemption from that definition pursuant to ORS 801.026(6). That statute provides, in part, that "[d]evices that are powered exclusively by human power are not subject to those provisions of the vehicle code that relate to vehicles." There is no dispute, defendant argues, that his skateboard was powered exclusively by human power and that the reckless driving statute, ORS 811.140, is a provision of the vehicle code. That, he argues, should end the matter.

The state counters that ORS 801.026(6) does not apply to the reckless driving statute, because that statute is not a provision of the vehicle code "that relate[s] to vehicles." According to the state, the qualification "relate[s] to vehicles" refers to portions of the vehicle code that concern the regulation of the vehicles themselves, as opposed to the manner in which they are driven.

The scope of the exemption contained in ORS 801.026(6) is a matter of statutory construction, subject to the method of analysis described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). In accordance with that method of analysis, we examine first the text of the statute in its context to determine whether the legislature's intended meaning has been expressed unambiguously. If the statute is ambiguous, then we resort to legislative history and other aids to construction. Id.

We begin with the text in its context. ORS 801.026 lists a...