State v. Douthitt

576 P.2d 1262, 33 Or. App. 333, 1978 Ore. App. LEXIS 3325

• Court: Court of Appeals of Oregon
• Decided: April 3, 1978
• Docket: 49753, CA 8778
• Status: Published

Opinions

THORNTON, J.

Defendant appeals his conviction of unauthorized use of a vehicle. ORS 164.135.¹ The issue is whether defendant exercised control over a vehicle such that his conduct constituted an unauthorized use proscribed by the statute.

The evidence adduced at trial was that defendant had gained entry into a parked automobile by pushing open an unlatched wind-wing and unlocking the door. The car had been left by the owner after running out of gas. After entering the vehicle, defendant rifled the glove box and put on a coat that was "[flaying in the back seat.” The arresting officer testified that when he noticed the vehicle parked in the emergency lane of the highway, he pulled over to offer assistance. Defendant exited the auto and explained to the officer that he had been riding in the car when it broke down, and that the owner had gone for help.

At that moment the car’s owner arrived. The owner told the officer that the vehicle was his and that he did not know the defendant. Defendant was arrested and charged with unauthorized use of a vehicle and theft in the second degree. ORS 164.045.²

The state would have us read "exercises control over” to mean that a mere entry into a vehicle or even simply climbing upon a vehicle would constitute an unauthorized use proscribed by ORS 164.135. We do not believe the statute can reasonably be given such a broad application.

Prior to the enactment of the new criminal code in 1971, two statutes dealt with the unauthorized , entry into a motor vehicle: (1) Former ORS 164.330³ prohibited entry with the intent to steal or commit felony therein and classified the crime as a larceny punishable as a misdemeanor or a felony and (2) former ORS 164.650⁴ prohibited any entry of a vehicle regardless of intent, and made the act punishable as a misdemeanor.

The new criminal code consolidated many offenses, including the two above, into statutes which were intended to simplify the law. Former ORS 164.330 was subsumed by the theft provisions of the code, ORS 164.015 to 164.125, with the intent of avoiding "artificial distinctions based upon the kind of property involved.” Minutes, Senate Criminal Law and Procedure Committee, March 2, 1971, p 2. Former ORS 164.550 was absorbed in part by ORS 164.135, the unauthorized use statute, as was former ORS 164.660⁵ and former ORS 164.670.⁶ As the Commentary to the Oregon Criminal Code notes in discussing ORS 164.135:

"The section is meant to include the kinds of acts covered by ORS 164.670, the existing 'joy-riding1 statute, as well as conduct such as manipulating, starting or tampering with motor vehicles (ORS 164.650, 164.660). Damaging a vehicle would be covered by the sections on criminal mischief. Unauthorized use of a vehicle is classified as a Class C felony, but in appropriate cases the court would be authorized to treat the crime as a Class A misdemeanor. (See § 83 supra). [ORS 161.705]” Oregon Criminal Code of 1971, Commentary at 177 (1975 ed).

Significantly, no reference is made to entering a vehicle, although other acts proscribed by former ORS 164.650 and former ORS 164.660 are included. Damaging a vehicle is covered by the statute on criminal mischief, ORS 164.345 to 164.365.

The Commentary is helpful in attempting to ascertain whether defendant’s conduct comes within the ambit of ORS 164.135 and more particularly within the meaning of the language "exercises control over.”⁷ In describing the statute the Commentary notes:

"* * * The purpose of the language, 'takes, operates, exercises control over, rides in or otherwise uses,’ is to prohibit not only the taking or driving of another’s vehicle without permission, but, also, to prohibit any unauthorized use of the vehicle.” Commentary, supra at 177.

We conclude that the new statute requires that the actor manifest an intent to deprive the rightful possessor of possession or to otherwise interfere with the rightful possessor’s use of the vehicle, but simply does not cover a naked trespass to the vehicle as did former ORS 164.650, set forth in footnote 4. A burglary of, or trespass to, a vehicle, such as was proscribed by former ORS 164.330 and former ORS 164.650, does not constitute "use” of a vehicle although it may amount to an attempted unauthorized use or some form of theft or criminal mischief. In this case the only acts affecting the vehicle were opening the locked door and rifling the glove box. Considered as separate acts or a single act, they do not constitute a sufficient exercise of control over the vehicle such that defendant has manifested an intent to affect the rightful possessor’s relationship to the automobile, i.e., there was no intention to use the vehicle.

Reversed.

1 ORS 164.135 provides in pertinent part:

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

"(a) He takes, operates, exercises control over, rides in or otherwise uses another’s vehicle, boat or aircraft without consent of the owner * *

2 Defendant was acquitted of the theft charge.

3 Former ORS 164.330 provides:

"Any person who enters any automobile, motor truck or other motor vehicle, trailer or trailer house, in which any property is kept, with intent to steal or to commit any felony therein, is guilty of larceny and shall be punished upon conviction by imprisonment in the county jail for not less them 30 days nor more than one year, or by a fine of not less than $25 nor more than $500, or by imprisonment in the penitentiary for not more than five years, or by a fine of not less than $100 nor more than $1,000, or by both such imprisonment and fine.”

4 Former ORS 164.650 provides:

"With the exception of an authorized officer, marshal, constable or policeman, any person who, without the consent of the owner or person lawfully in charge of a motor vehicle, as defined in ORS 483.014, climbs upon or into such motor vehicle, whether it is at rest or in motion; or, while it is at rest or unattended, attempts to manipulate any of the levers, the starting crank or other device, brakes or mechanism, or sets the vehicle in motion, shall be punished, upon conviction, as provided in subsection (1) of ORS 483.990 for violation of the statutes listed therein.”

5 Former ORS 164.660 provides:

"Any person who, individually or in association with one or more others and against the will or without the consent of the owner of any motor vehicle, as defined in ORS 483.014, wilfully breaks, injures, tampers with or removes any part of such vehicle for the purpose of injuring, defacing or destroying it, or temporarily or permanently preventing its useful operating for any purpose, or in any manner wilfully or maliciously interferes with or prevents the running or operation of such motor vehicle, shall be punished, upon conviction, as for a misdemeanor.”

6 Former ORS 164.670 provides:

"(1) Every person who takes or uses without authority any vehicle, watercraft or aircraft without intent to steal it, or is a party to such unauthorized taking or using, shall be punished upon conviction by imprisonment in the penitentiary for not more than two years, or by a fine of not more than $500. For the first offense the court may reduce the punishment to imprisonment in the county jail for not more than six months, or a fine of not more than $200.

"(2) This section applies to any person employed by the owner of a vehicle, watercraft or aircraft or anyone else who, by the nature of his employment, has the charge of or the authority to drive the vehicle, watercraft or aircraft if it is driven or used without the owner’s knowledge or consent; and when so operated the owner thereof shall not be responsible.”

7 The only Oregon case interpreting the language "exercises control over” is State v. Macomber, 269 Or 58, 523 P2d 560 (1974). In Macomber the court dealt with the issue of whether proof of possession of nearly all the parts of disassembled truck was a sufficient exercise of control to constitute the unauthorized use of that vehicle. The court indicated that "exercises control over” may consist of something less than actual operation of the vehicle, but that the control must be exercised over an integral operable vehicle. The court concluded that the defendant was probably guilty of some form of theft, but that there was no evidence that he had exercised control over an operable vehicle.