State v. Shipe

332 P.3d 334, 264 Or. App. 391, 2014 WL 3638904, 2014 Ore. App. LEXIS 1005
CourtCourt of Appeals of Oregon
DecidedJuly 23, 2014
DocketC120721CR; A152549
StatusPublished
Cited by10 cases

This text of 332 P.3d 334 (State v. Shipe) 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. Shipe, 332 P.3d 334, 264 Or. App. 391, 2014 WL 3638904, 2014 Ore. App. LEXIS 1005 (Or. Ct. App. 2014).

Opinion

HADLOCK, J.

Charges were filed against defendant after a police officer found him sitting in a stolen truck that contained, among other things, baggies with drug residue. Defendant’s case was tried to the court, which convicted defendant of unauthorized use of a vehicle (UUV), ORS 164.135,1 and unlawful possession of methamphetamine, ORS 475.894. On appeal, defendant challenges only the UUV conviction, arguing that the trial court erred when it denied his motion for judgment of acquittal on that charge. According to defendant, the state failed to prove that he “knowingly” used the truck without the owner’s consent, as charged in the information. We agree and, therefore, reverse the UUV conviction.

When reviewing an order denying a motion for judgment of acquittal, we view the evidence in the light most favorable 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). We present the facts consistently with that standard.

On March 27, 2012, a pickup truck was reported missing by its owner. Defendant was incarcerated at the time. Six days later, Officer Neumeister, responding to a call in the parking lot of an apartment complex, found defendant sitting in the driver’s seat of the stolen truck, with the engine running and the lights on, listening to music and “moving his head back and forth, and kind of making loud * * * high pitched squealing noises.” Defendant told Neumeister that he lived at the apartment complex and had driven the truck there approximately 15 minutes earlier. Neumeister arrested and searched defendant, finding baggies imprinted with an “iron cross” logo and containing methamphetamine.

[393]*393The state charged defendant with four crimes, including UUV and unlawful possession of methamphetamine.2 Regarding the UUV charge, the information alleged that defendant “did unlawfully and knowingly take, operate, exercise control over, ride in and otherwise use” the truck “without the consent of the owner.”

The case was tried to the court. Neumeister testified that, when he had asked defendant about the truck, defendant said that he had gotten it from “a friend named Richey,” who lived near a school in Tualatin. Neumeister also testified that he assumed there were keys in the ignition, but he “did not necessarily see the keys in the ignition.” In the cab of the truck, officers found various items, including baggies with drug residue that were imprinted with the same “iron cross” logo as those found on defendant, clothing, bolt cutters, keys, documents with other people’s names on them, and a locked case that had the words “crime committing kit” painted on it. Police later discovered that much of the property found in the truck had been stolen.

The truck’s owner testified that, when the truck was returned to him, it contained several items that did not belong to him, including blankets, iPods, remnants of game systems, and a laptop. All of the owner’s property that had been in the truck was missing, including his registration and insurance card, and there was considerable damage to the exterior and interior of the truck. The ignition was in working order, but the key that defendant had used to operate the truck did not belong to the owner. The owner had not made a copy of his key, nor had he given anyone his key.

Defendant’s girlfriend, Bouferrache, lived in the apartment complex where defendant was arrested. She testified that, around the time of defendant’s arrest, her son, Smith, would visit her in a “big truck” that he had had for approximately two months. Bouferrache knew that Smith previously had been convicted of unauthorized use of a vehicle, relating to the theft of a car; however, Smith had told her — in front of defendant — that the truck he was using at [394]*394that time was a “work truck” that he had received from a friend who had recently given him a job.

Surveillance video taken by the apartment complex showed a silver truck arriving at and leaving the parking lot several times on March 30, three days before defendant’s arrest. The video showed a driver getting out of the truck on at least two occasions that day and entering Bouferrache’s apartment. The resident manager of the apartment complex recognized the driver as someone who was staying with Bouferrache at the time, but it was not defendant or Smith. When asked whether the driver’s name could have been Rich Wright, the apartment manager stated that she thought that that was the driver’s name.

During his closing argument, defendant argued that no evidence showed that he had known that the vehicle was stolen when he used it. The trial court disagreed. The court found that defendant was trying to cover for Smith when he said that he had gotten the truck from “Richey.” The court continued, “why would you try to cover for somebody else? Well, it’s because you have knowledge that he [Smith] doesn’t have authority for the vehicle.” The court was also persuaded by the evidence that the baggies found on defendant’s person were similar to baggies found in the truck, along with the bolt cutters, “crime committing kit,” and documents belonging to other people. According to the court,

“all of this tells somebody * * * you’re on notice that wrapped in all of this information, all this theft information is that this car is containing stolen information.
“You couple that with the fact that he knows his girlfriend’s son, and if it was, in fact, his girlfriend’s son stole and gave him the car, and knows that he has been convicted of unlawful use, and knows that there might be something odd here * * *.
“All that coupled together is, he knew that something was going on with this vehicle, and absolutely knew that it was not authorized for Mr. Smith to have that vehicle, and Mr. Smith, therefore, could not * * * clear his conscience for it. He operated the vehicle knowing that he didn’t have permission of the owner.”

[395]*395On appeal, defendant argues that the trial court erred when it denied his motion for judgment of acquittal. See State v. Gonzalez, 188 Or App 430, 431, 71 P3d 573 (2003) (explaining that, in a bench trial, when a defendant argues during closing argument that the state failed to adduce sufficient evidence for conviction, that argument is “the equivalent of a motion for judgment of acquittal”). Defendant does not dispute that he drove the truck without the owner’s consent; however, he argues that the state failed to prove that he “knowingly” operated the vehicle without the owner’s consent, as charged in the information — that is, that he actually knew that the truck was stolen. See State v. Bell, 220 Or App 266, 269, 185 P3d 541 (2008) (when an indictment alleged that the defendant committed UUV “knowingly,” “the state was required to prove that defendant actually knew that the car was stolen” (emphasis in original)); see also State v. Lasky, 259 Or App 307, 317, 314 P3d 304 (2013) (citing that passage from Bell as authority for the proposition that “the state must prove that the defendant knew that he did not have the owner’s consent to use the vehicle”).

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Cite This Page — Counsel Stack

Bluebook (online)
332 P.3d 334, 264 Or. App. 391, 2014 WL 3638904, 2014 Ore. App. LEXIS 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-shipe-orctapp-2014.