State v. Simonsen

364 P.3d 702, 275 Or. App. 154, 2015 Ore. App. LEXIS 1415
CourtCourt of Appeals of Oregon
DecidedDecember 2, 2015
Docket13CR05760; A155995
StatusPublished

This text of 364 P.3d 702 (State v. Simonsen) 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. Simonsen, 364 P.3d 702, 275 Or. App. 154, 2015 Ore. App. LEXIS 1415 (Or. Ct. App. 2015).

Opinion

FLYNN, J.

Defendant appeals a judgment convicting him of unauthorized use of a vehicle (UUV), ORS 164.135, for taking and driving his mother’s car after she denied consent.1 He challenges the trial court’s jury instructions regarding ownership of the vehicle. Defendant acknowledges that he did not preserve his assignments of error but argues that the trial court committed plain error and that we should exercise our discretion to correct the error. We conclude that the trial court did not commit plain error and, accordingly, affirm.

A person commits the crime of UUV by, as relevant here, using “another’s vehicle *** without consent of the owner.” ORS 164.135(l)(a). At trial, the state presented the testimony of defendant’s mother, Kelly Simonsen, who stated that she owned the car and had denied defendant’s request to use it because defendant’s license had been suspended. Defendant, on the other hand, presented evidence that his father, Mark Simonsen, jointly owned the car with Kelly Simonsen and had given defendant permission to use the car earlier in the day. In closing remarks to the jury, defendant argued that his father was an owner of the car, had the right to give defendant permission to use the car, and had given defendant permission to use the car.

The jury instructions, however, did not match defendant’s theory of defense to the UUV charge. The court provided the jury with Uniform Criminal Jury Instruction (UCrJI) 1819, which sets out the elements of UUV that the state must prove beyond a reasonable doubt. The uniform instruction contains a number of brackets indicating case-specific information that is to be inserted by the parties. See UTCR 6.060(3).2 Prior to trial, the state filed [156]*156the State’s Requested Jury Instructions, in which it both requested UCrJI 1819 by number and provided a version of the requested instruction that proposed case-specific text in place of the brackets. Specifically, the state’s proposed substitutions included replacing the bracket “[Defendant’s name]” with “Mitchell Simonsen,” the bracket “ [insert appropriate culpable mental state]” with “knowingly” and the bracket “[owner’s name]” with “Kelly Simonsen.” Thus, the form of instruction submitted by the state specified, in pertinent part:

í]í
“In this case, to establish the crime of unauthorized use of a vehicle, the state must prove beyond a reasonable doubt the following four elements:
* * * *
“(3) Mitchell Simonsen knowingly took or operated a vehicle as described in the charge, which was owned by Kelly Simonsen; and
“(4) Mitchell Simonsen knowingly did not have the consent of the owner.”

The trial court gave the state’s proposed version of the uniform instruction.

Defendant had also requested UCrJI 1819 by number, but he did not offer his own version proposing case-specific substitutions for the blanks in the uniform instruction, and he did not challenge the state’s proposed substitutions. Defendant now assigns error, however, to the trial court’s decision to give the uniform instruction with the text requested by the state. Defendant argues that the reference to the vehicle as “owned by Kelly Simonsen” amounted to an improper comment on the evidence “by directing the jury to consider only the prosecutor’s theory of the case.” He contends that the instruction suggested to the jury that, in evaluating the UUV charge, the jury could not consider defendant’s evidence that Mark Simonsen was a co-owner and had consented to defendant’s use of the car.

[157]*157Defendant also assigns error to the trial court’s failure to instruct the jury on the rule of joint ownership that is set out in ORS 164.105(2):

“A joint or common owner of property shall not be deemed to have a right of possession of the property superior to that of any other joint or common owner of the property.”

Without an instruction on that point, defendant argues, the trial court’s UUV instructions were incomplete. Thus, both of defendant’s assignments of error challenge the trial court’s failure to give instructions consistent with defendant’s theory of the case that the jury could find him not guilty of UUV, despite the denial of consent by one co-owner, if the jury found that the other co-owner consented to defendant’s use of the vehicle. Defendant concedes that he did not preserve either assignment of error but urges us to, nevertheless, exercise our discretion to correct what he contends are plain errors in the jury instructions.

Generally, under the principle of preservation, claims of error that were not raised before the trial court will not be considered on appeal. State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011) (citing State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000)); see ORAP 5.45(1); see also State v. Whitmore, 257 Or App 664, 666, 307 P3d 552 (2013) (stating that the purpose of preservation is “to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument” (internal quotations omitted)). We review unpreserved claims of instructional error in criminal cases “pursuant to the court’s traditional plain error doctrine.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). Under that doctrine, to qualify as “plain error,” the asserted error (1) must be an error of law; (2) must be “apparent, i.e., the point must be obvious, not reasonably in dispute”; and (3) “must appear ‘on the face of the record,’ i.e., the reviewing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.” Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (quoting State v. Brown, 310 Or 347, 355-56, 800 P2d 259 [158]*158(1990)). “If each of those requirements is satisfied, the court proceeds to the second step, where it must decide whether to ‘exercise its discretion to consider or not to consider the error[.]”’ State v. Serrano, 355 Or 172, 179, 324 P3d 1274 (2014), cert den, _ US _, 135 S Ct 2861 (2015) (quoting Ailes, 312 Or at 382).

In examining defendant’s claim that the trial court plainly erred, we consider — but do not resolve — the merits of defendant’s theory that a person does not commit UUV if the vehicle is co-owned and one co-owner grants consent. See State v. Godines, 236 Or App 404, 413, 236 P3d 824, rev den, 340 Or 480 (2010) (“[W]e necessarily must examine the merits of defendant’s alleged error for the sole purpose of determining whether that alleged error is an ‘obvious’ one.” (Emphasis in original.)). Defendant argues that the alleged instructional errors are plain given our opinion in State v. Dollar, 181 Or App 354, 45 P3d 1014 (2002), which applies ORS 164.105

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Related

State v. Walker
258 P.3d 1228 (Oregon Supreme Court, 2011)
Washburn v. Columbia Forest Products, Inc.
134 P.3d 161 (Oregon Supreme Court, 2006)
State v. Wyatt
15 P.3d 22 (Oregon Supreme Court, 2000)
Ailes v. Portland Meadows, Inc.
823 P.2d 956 (Oregon Supreme Court, 1991)
State v. Godines
236 P.3d 824 (Court of Appeals of Oregon, 2010)
State v. Brown
800 P.2d 259 (Oregon Supreme Court, 1990)
State v. Dollar
45 P.3d 1014 (Court of Appeals of Oregon, 2002)
State v. Vanornum
317 P.3d 889 (Oregon Supreme Court, 2013)
State v. Serrano
324 P.3d 1274 (Oregon Supreme Court, 2014)
State v. Whitmore
307 P.3d 552 (Court of Appeals of Oregon, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
364 P.3d 702, 275 Or. App. 154, 2015 Ore. App. LEXIS 1415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simonsen-orctapp-2015.