State v. Hoag

797 P.2d 1233, 165 Ariz. 215, 68 Ariz. Adv. Rep. 7, 1990 Ariz. App. LEXIS 286
CourtCourt of Appeals of Arizona
DecidedAugust 28, 1990
DocketNo. 1 CA-CR 89-896
StatusPublished
Cited by3 cases

This text of 797 P.2d 1233 (State v. Hoag) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hoag, 797 P.2d 1233, 165 Ariz. 215, 68 Ariz. Adv. Rep. 7, 1990 Ariz. App. LEXIS 286 (Ark. Ct. App. 1990).

Opinion

OPINION

JACOBSON, Judge.

The sole issue in this appeal is whether mere unauthorized entry into a vehicle or other such trespassory conduct constitutes “control” over that vehicle sufficient to support a conviction for unlawful use of means of transportation in violation of A.R.S. § 13-1803. We hold that it does not, and thus we reverse.

Factual and Procedural Background

On April 26, 1989, defendant entered a 1971 Volkswagen van owned by George Cooper through an unlocked passenger door. A security guard observed defendant pulling at a CB radio mounted under the dashboard.

Defendant was arrested and charged with burglary in the third degree, a class 4 felony. He entered into a written plea agreement, in which he agreed to plead guilty to unlawful use of means of transportation, a class 6 undesignated offense. Based solely upon the observation of the security guard, the court found that there was a factual basis for the plea and that it was voluntarily and intelligently entered. The court accepted the plea and placed defendant on three years probation, with the offense to be designated a misdemean- [216]*216or upon successful completion of his probation. Defendant appealed, arguing that, since the factual basis failed to show that he exercised control of the vehicle as a means of transportation, a conviction for unlawful use of means of transportation is not supported.

Discussion

A.R.S. § 13-1803(A), which defines the crime of unlawful use of means of transportation, provides:

A person commits unlawful use of means of transportation if, without intent permanently to deprive, such person knowingly takes unauthorized control over another’s means of transportation. (Emphasis added.)

A.R.S. § 13-1803 replaced former A.R.S. § 13-672(C), which prohibited conduct commonly known as “joyriding.”1 State v. Cain, 27 Ariz.App. 441, 555 P.2d 1129 (1976). Defendant argues that the “control” necessary to violate the present statute must be associated with use of the vehicle as a means of transportation, that is, “joyriding.” On the other hand, the state contends that mere unauthorized presence in another’s vehicle is sufficient “control” to form the factual predicate for a violation of A.R.S. § 13-1803.

Because there are no cases in this jurisdiction construing “control” in the context of § 13-1803, we consequently look to the policy behind the statute and its historical background in order to resolve this interpretation question. Martin v. Martin, 156 Ariz. 452, 457, 752 P.2d 1038, 1043 (1988); Calvert v. Farmers Ins. Co. of Arizona, 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985).

The term “joyriding” has no distinct legal meaning. See Annotation, Automobiles: Elements of Offense Defined in “Joyriding”Statutes, 9 A.L.R.3d 633 (1966 & Supp.1989). In Arizona, the key difference between this offense and theft, as proscribed in A.R.S. § 13-1802, is the temporary nature of the deprivation. R. Gerber, Criminal Law of Arizona, § 13-1803 at 257 (1978). The former “joyriding” statute was designed to remedy those evils associated with temporary dispossession of a vehicle. As stated by the drafters of the Model Penal Code:

The typical situation dealt with is the “joyride,” i.e., the taking of another’s automobile without his permission, not for the purpose of keeping it but merely to drive it briefly____ Such joyriding jeopardizes the vehicle itself, a considerable amount of temptingly mobile property, and, since the circumstances are conducive to irresponsible behavior in the operation of the vehicle, jeopardizes the lives of the riders and others.

Model Penal Code and Commentaries, § 223.9 at 271 (1980).

The question remains whether the legislature in replacing the former statute with § 13-1803 intended to eliminate the connotations associated with “joyriding” and substitute mere presence in the vehicle as the conduct necessary for a violation of the new statute. We find persuasive cases from other jurisdictions which have addressed this issue of whether trespassory conduct is sufficient to constitute unauthorized control in the context of similar statutes. In State v. Douthitt, 33 Or.App. 333, 576 P.2d 1262 (1978), the court construed an Oregon statute which made it a crime to, among other things, “exercise control over” a vehicle without the consent of the owner. In that case, the defendant had entered a parked vehicle, rifled the glove box, and put on a coat that was lying in the back seat. He was arrested and charged with “unauthorized use of a vehicle” in violation of ORS 164.135. The court rejected the state’s argument that “exercises [217]*217control over” means mere entry into a vehicle, holding:

We conclude that [ORS 164.135] 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____ 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.

576 P.2d at 1265.

Similarly, in People v. Butler, 119 Misc.2d 1071, 465 N.Y.S.2d 477 (Sup.Ct.1983), the defendant broke into a parked vehicle and was observed kneeling on the front passenger seat facing the dashboard. He was charged with unauthorized use of a vehicle, which included “exercispng] control over ... or otherwise uspng]” the vehicle. That court held that, in order to violate the unauthorized use statute, the defendant must exercise some degree of control over the confines of the car or the car’s mechanism. 465 N.Y.S.2d at 479. The Butler court stated:

In the instant case the defendant did not obtain the means to set the car’s mechanism in operation, nor is there any evidence, such as possession of a tool designed to bypass the car’s ignition system, of an intent to operate the car.

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Cite This Page — Counsel Stack

Bluebook (online)
797 P.2d 1233, 165 Ariz. 215, 68 Ariz. Adv. Rep. 7, 1990 Ariz. App. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hoag-arizctapp-1990.