State v. Korth

344 P.3d 491, 269 Or. App. 238, 2015 Ore. App. LEXIS 207
Court of Appeals of Oregon·Decided February 19, 2015·No. 121134898; A153685·Published·Cited by 7 cases

Opinion

TOOKEY, J.

This case involves “jiggle keys”1 and a stolen truck. After being pulled over in a stolen pickup truck, defendant was arrested and charged with unauthorized use of a vehicle (UUV), ORS 164.1352 (Count 1), possession of a stolen vehicle (PSV), ORS 819.3003 (Count 2), and possession of methamphetamine, ORS 475.894 (Count 3). The trial court found defendant guilty of all three charges and, because Count 2 merged with Count 1, defendant was convicted of Count 1, UUV, and Count 3, possession of methamphetamine. On appeal, defendant raises two issues relating to the UUV and PSV charges.4 First, defendant assigns error to the trial court’s denial of his motion for judgment of acquittal on both charges, arguing that there was insufficient evidence to prove that he knew that the truck was stolen. Second, defendant assigns error to the trial court’s imposition of restitution in the amount of $1,800 for damage to the truck’s hood.

We conclude that the state failed to present sufficient evidence that defendant knew that the truck was stolen, and therefore the trial court erred in denying defendant’s motion for judgment of acquittal on both the UUV and PSV charges. Accordingly, we do not reach the issue of whether restitution was warranted, and we reverse the judgment of the trial court as to Counts 1 and 2, remand for resentencing, and otherwise affirm.

When reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable [240] to the state to determine whether a rational factfinder could have found that the essential elements of the crime were proven beyond a reasonable doubt. State v. Cervantes, 319 Or 121, 125, 873 P2d 316 (1994).

During a residential burglary in Salem, the keys to the victim’s Chevrolet Silverado pickup truck, along with the truck itself and other property, were stolen. According to the victim, a family member named Randy was arrested for the burglary and theft of the truck. Approximately 10 days after the burglary, defendant, whom the victim did not know, was seen driving the truck in Multnomah County. Police Officer Dick stopped and arrested defendant. When Dick asked defendant who the truck belonged to, defendant stated that he “got it from a guy named Dave,” a “friend of a friend” whom he had met “about a week and a half to two weeks” prior. He stated that, as far as he knew, the truck belonged to Dave, and Dave had been driving the truck “as long as he had known him.” Defendant did not know Dave’s last name, his telephone number, or where he lived, except that he was “pretty transient,” and defendant thought that Dave was “pretty much” living in another truck of his and “kind of going between two trailers in a trailer park” on Nile Street, in Salem. Dick asked defendant whether he thought it was “odd” that Dave was transient, and living in his truck, while the truck that defendant was driving when he was stopped was “pretty nice.” Defendant responded that he “had heard that Dave was going through a divorce, and his wife was pretty much taking him for everything [he was] worth,” and that was why he was living in his truck.

Defendant told Dick that he had borrowed the truck from Dave in Salem the previous night, so that he could help a woman in Portland buy an all-terrain vehicle (ATV). He stated that he had arranged to go to Portland, get a trailer from the woman, and then meet the seller of the ATV in Longview. He stated that he had met the ATV seller in Longview at “sometime around” 2:00 a.m. or 3:30 a.m. that morning, returned to Portland with the ATV, and dropped the trailer and ATV back off at the woman’s house before being stopped by Dick. Defendant told Dick that he was supposed to return the truck to Dave later that day.

[241] Another officer, Edwards, arrived and assisted Dick by taking an inventory of the contents of the truck. During that process, Edwards removed the keys from the ignition— which were “valid” keys for the truck — and used them to unlock the door to the canopy that covered the bed of the truck. When he opened the door, he found, “right inside the door,” a “couple huge sets” of “jiggle keys.” As explained above, “jiggle keys” are “regular old keys that [people] use to steal Honda Accords and Toyota Camrys, because those are easy to steal with any old key” or “other keys that sometimes the car thieves will file down * * * because if they file [a key] down a certain way, they’re able to stick it into the ignition and just jiggle it around and start cars.” The keys found in the truck included different car keys, home keys, and safe keys. Two bags were found behind the “jiggle keys.” The bags contained, among other things, drug paraphernalia and paperwork with defendant’s name on it.

Initially, defendant denied that any of the property in the back of the truck was his and stated that he had not been in the back of the truck because Dave had told him not to go there. After Edwards showed him the paperwork that he had found, defendant admitted to lying about being in the back of the truck. He admitted that the bags belonged to him but again denied that the “jiggle keys” were his.

Dick did not recall any damage to the truck, and she testified that there was nothing about the truck that, physically, would have indicated that the truck was stolen, such as a “punched” ignition, “[hot]wiring” of the truck, or signs of forced entry. When the victim received her truck back, she found a dent in the hood that had not previously been there. The dent cost $1,800 to repair.

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State v. Korth, 344 P.3d 491, 269 Or. App. 238, 2015 Ore. App. LEXIS 207 (Or. Ct. App. 2015).

344 P.3d 491 (State v. Korth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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