State v. Haney

301 P.3d 445, 256 Or. App. 506, 2013 WL 1905472, 2013 Ore. App. LEXIS 528
CourtCourt of Appeals of Oregon
DecidedMay 8, 2013
Docket111034432; A150603
StatusPublished

This text of 301 P.3d 445 (State v. Haney) 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. Haney, 301 P.3d 445, 256 Or. App. 506, 2013 WL 1905472, 2013 Ore. App. LEXIS 528 (Or. Ct. App. 2013).

Opinion

EGAN, J.

Defendant appeals a judgment convicting him of two counts of unauthorized use of a vehicle (UUV), ORS 164.135(1)(a). Those convictions arose from a single incident in which defendant was driving a car in Oregon without the permission of the owner or of a tow yard that had a lien interest in the car. Defendant contends that the trial court erred in failing to merge the two convictions under ORS 161.067(2) because the owner of the car and the tow yard owned joint interests in the car. We agree and, therefore, reverse and remand.

We recite the relevant facts, which are undisputed, from the limited record in the case. The UUV charges were based on an incident in which defendant came into possession of a car and drove it from Washington to Oregon. How defendant came into possession of the car is not clear from the record, but the record does establish that the car’s owner was hospitalized at the time and did not authorize defendant’s use of it.

While defendant was still in Washington, he was stopped by a police officer, who had the car towed because defendant was driving without a license. Defendant then broke into the tow yard, took the car, and drove it to Oregon, where he was once again stopped by the police. Defendant was charged with two counts of UUV, one listing the owner as the vehicle’s owner and the other listing the owner as the tow yard, and two counts of possession of a stolen vehicle.

The tow yard had a lien interest in the car as security for payment of the tow that it had performed after defendant was stopped for the first time. After the car was recovered from defendant in Oregon, it was returned to the tow yard, which auctioned it before the owner was able to claim it.

At trial, defendant pleaded guilty to the two UUV counts in exchange for the state agreeing to dismiss the two counts of possession of a stolen vehicle. At sentencing, defendant contended that the two UUV convictions should merge because they were based on the same conduct— viz., defendant operating the car in Oregon without the [508]*508permission of its owner. Specifically, defendant contended that the two convictions should merge because the owner of the car and the tow yard are considered a single victim under ORS 161.067(2). The state responded that defendant’s argument was not timely because it had discussed merger with defendant at the time that defendant had pleaded guilty to the two UUV counts. The state further argued that separate convictions were justified because the owner and the tow yard held different property interests in the car. The court did not merge the convictions.

Defendant appeals, contending that the court erred in failing to merge his convictions under ORS 161.067(2). The state responds that the court was not required to merge defendant’s convictions because the owner and the tow yard did not own joint interests in the car.1

ORS 161.067(2) provides, in part:

“When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. However, two or more persons owning joint interests in real or personal property shall be considered a single victim for purposes of determining the number of separately punishable offenses if the property is the subject of one of the following crimes:
«* * * * *
“(b) Unauthorized use of a vehicle as defined in ORS 164.135.”

Thus, the number of separately punishable offenses for a crime is equal to the number of victims unless the victims own joint interests in property that is the subject of, among [509]*509other crimes, UUV.2 Therefore, determining whether a defendant is guilty of multiple separately punishable counts of UUV under ORS 161.067(2) depends on whether the defendant’s conduct involved more than one victim and, if it did, whether the victims owned joint interests in the vehicle that the defendant was using without permission.

To determine the victims of a crime for purposes of ORS 161.067(2), we look to the statute that defines the crime. State v. Sanchez-Alfonso, 224 Or App 556, 560, 198 P3d 946 (2008). Accordingly, we turn to ORS 164.135(l)(a), which provides, in relevant part, “A person commits the crime of unauthorized use of a vehicle when * * * [t]he person takes, operates, exercises control over, rides in or otherwise uses another’s vehicle *** without consent of the owner [.]” “Owner,” for purposes of UUV, is defined as “any person who has a right to possession [of a vehicle] superior to that of the taker, obtainer or withholder.” ORS 164.005(4). Thus, a person commits UUV by, among other things, operating or exercising control over a vehicle without the consent of any person whose right to possession of the vehicle is superior to that of the person operating or exercising control over the vehicle.

Although those statutes do not expressly address whether an owner, as defined in ORS 164.005(4), is a victim for purposes of ORS 161.067(2), we conclude that that is the case. Ordinarily, when the conduct that a statute criminalizes is conduct directed at property, “it is reasonable to conclude that, for purpose of ORS 161.067(2), the victim of the crime * * * is the owner of the property.” State v. Luers, 211 Or App 34, 65-66, 153 P3d 688 (2007). Furthermore, the conduct that ORS 164.135(1)(a) criminalizes is use of a vehicle without the permission of a person who has a right to possession of the vehicle superior to that of the defendant, and it is therefore evident that the statute was intended to protect people with those superior possessory rights from being denied [510]*510possession of the vehicle. Consequently, we conclude that owners, as that term is defined in ORS 164.005(4), are UUV victims for purposes of ORS 161.067

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Related

State v. Bowers
237 P.3d 221 (Oregon Supreme Court, 2010)
State v. Salvador
241 P.3d 324 (Court of Appeals of Oregon, 2010)
State v. Sanchez-Alfonso
198 P.3d 946 (Court of Appeals of Oregon, 2008)
State v. Bowers
227 P.3d 822 (Court of Appeals of Oregon, 2010)
State v. Lucio-Camargo
62 P.3d 811 (Court of Appeals of Oregon, 2003)
State v. Luers
153 P.3d 688 (Court of Appeals of Oregon, 2007)
State v. Lucio-Camargo
18 P.3d 467 (Court of Appeals of Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
301 P.3d 445, 256 Or. App. 506, 2013 WL 1905472, 2013 Ore. App. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-haney-orctapp-2013.