State v. Eastep

371 P.3d 1287, 277 Or. App. 673, 2016 WL 1583667, 2016 Ore. App. LEXIS 491
CourtCourt of Appeals of Oregon
DecidedApril 20, 2016
Docket13CR0802; A155418
StatusPublished
Cited by3 cases

This text of 371 P.3d 1287 (State v. Eastep) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Eastep, 371 P.3d 1287, 277 Or. App. 673, 2016 WL 1583667, 2016 Ore. App. LEXIS 491 (Or. Ct. App. 2016).

Opinion

FLYNN, J.

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 P3d 97 (2008), rev den, 345 Or 618 (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 P3d 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):

“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 [.] ”

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 [676]*676pickup 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 P2d 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. 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. 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 61.2

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 P2d 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. [677]*677We 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. 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 inop-erability but the fact that there was no single, assembled vehicle:

“The court employed ‘single operative unit’ merely to distinguish parts of a motor vehicle from an assembled, identifiable vehicle. It did not further limit the definition of ‘vehicle’ to require that the vehicle be completely operable as well as assembled. If it did, it could simply have used ‘operable’ alone.”

Blair, 54 Or App at 231 (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 P3d 1129, rev den, 355 Or 880 (2014) (prior opinion of court will be adhered to unless plainly wrong).

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. Additionally, the legislative history does not [678]*678reflect an intention to so limit the statute’s application. As we noted in State v. Essig, 31 Or App 639, 644, 571 P2d 170 (1977), rev den,

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Related

State v. Eastep
Oregon Supreme Court, 2017

Cite This Page — Counsel Stack

Bluebook (online)
371 P.3d 1287, 277 Or. App. 673, 2016 WL 1583667, 2016 Ore. App. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-eastep-orctapp-2016.