47
Argued and submitted February 11; reversed in A168630, affirmed in A168631
March 18, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER THOMAS FULLER,
Defendant-Appellant.
Yamhill County Circuit Court
18CR25617, 18CR41611;
A168630 (Control), A168631
463 P3d 605
Defendant’s half-sister gave him permission to live in her car but not to drive
it. Defendant drove it. For that conduct, defendant was charged and convicted of
unauthorized use of a vehicle (UUV), ORS 164.135(1)(a). On appeal, he assigns
error to the trial court’s denial of his motion for judgment of acquittal, contending
that there is insufficient evidence to convict him of UUV because he came into
possession of the car with his sister’s permission. Held: Under State v. Civil, 283
Or App 395, 415-18,
388 P3d 1185 (2017), when “a person who is in possession of a
vehicle pursuant to an agreement with the owner deviates from the agreed use,”
that deviation cannot support a conviction for UUV under ORS 164.135(1)(a). The
trial court therefore erred.
Reversed in A168630; affirmed in A168631.
Ladd J. Wiles, Judge.
Anna Belais, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and Powers, Judge,
and Hadlock, Judge pro tempore.
LAGESEN, P. J.
Reversed in A168630; affirmed in A168631.
48 State v. Fuller
LAGESEN, P. J.
In this consolidated appeal,1 defendant challenges
his judgment of conviction for the unauthorized use of a
vehicle (UUV) in violation of ORS 164.135(1)(a). He assigns
error to the trial court’s denial of his motion for judgment of
acquittal, contending that, under State v. Civil, 283 Or App
395,
388 P3d 1185 (2017), there is insufficient evidence to
convict him under that provision because it is undisputed
that he came into possession of the car because his sister,
the car’s owner, gave him permission to live in it. We agree
and reverse that conviction.
We review the denial of a motion for a judgment of
acquittal “by examining the evidence in the light most favorable to the state to determine whether a rational trier of
fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element[s] of the
crime beyond a reasonable doubt.” State v. Cunningham, 320
Or 47, 63,
880 P2d 431 (1994), cert den,
514 US 1005 (1995).
We state the facts, which are not complex, in light of
our standard of review. Defendant was down on his luck and
had nowhere to live. His younger half-sister had recently
purchased a 1998 Honda Civic and gave defendant permission to live in it. At the time, she was not yet using the car
because she did not yet have her license. She did not initially
tell him that he could not drive it, but, when he asked, she
told him no; she “just allowed him to put his stuff in there
and sleep in there.” Defendant drove the car anyway.
For that conduct, the state charged defendant with
UUV in violation of ORS 164.135(1)(a). At the time of defendant’s crime, that provision stated that “[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, boat or aircraft without
consent of the owner.” ORS 164.135 (2017).2 As we explained
1
Defendant separately appeals a judgment of conviction for first-degree failure to appear, ORS 162.205, but raises no challenges with respect to that conviction, so we affirm it.
2
The legislature subsequently amended ORS 164.135. Those amendments
took effect January 1, 2020. Or Laws 2019, ch 530, § 1. The amended statute is
not at issue on appeal. All references to ORS 164.135 in this opinion are to ORS
164.135 (2017).
Cite as 303 Or App 47 (2020) 49
in Civil, that provision “does not apply to circumstances in
which a person who is in possession of a vehicle pursuant to
an agreement with the owner deviates from the agreed use.”
283 Or App at 415. Rather, other sections of the statute, ORS
164.135(1)(b) and (c), apply where the person possesses the
vehicle pursuant to an agreement but then uses the vehicle
in a manner that deviates from the agreement.
Id. at 413.
At trial, following the state’s case, defendant moved
for a judgment of acquittal “on the issue of to take, operate,
ride in or control.” Pointing out that defendant’s half-sister
“gave him the authority to live in it, to be in it, to control
it,” defendant argued that there was insufficient evidence
to support his conviction, noting that “there’s no sufficient
evidence to indicate that he did anything other than what
the scope of what you (inaudible) permission to do.” The trial
court denied the motion, ruling that “the evidence is …
sufficient to go to the jury on unauthorized taking, operating or riding in.” The court observed that “[e]xercising control of the interior while it was in a particular location is
different from the rest of the evidence here.” The jury found
defendant guilty as charged.
On appeal, defendant argues that the trial court
erred in denying his motion for judgment of acquittal in
view of our conclusion in Civil that ORS 164.135(1)(a) does
not apply to a defendant who possesses a vehicle pursuant
to an agreement with the owner but then uses the vehicle in
a way that deviates from the agreement. The state responds
that we should not read Civil so broadly as to apply to circumstances in which a vehicle’s owner grants the defendant
permission to possess and use a vehicle for purposes other
than driving.
As an initial matter, although neither party raises
the point, we consider whether defendant preserved the issue
he is raising on appeal. On the one hand, defendant’s arguments to the trial court in support of his motion were brief,
unclear, and did not cite the court to Civil, although it had
been decided by the time of defendant’s trial. On the other
hand, defendant’s arguments put at issue (in a shorthand
way) whether there was sufficient evidence that he engaged
in the type of unauthorized taking, operating, riding in, or
50 State v. Fuller
other use of the vehicle covered by ORS 164.135, given that
he had been given permission by his half-sister to possess
and use the vehicle as a home. In addition, the trial court
squarely ruled on that issue, stating expressly that “the evidence is … sufficient to go to the jury on unauthorized taking, operating or riding in.” Further, nothing about the way
the issue was raised or ruled on put the opposing party—the
state—at an unfair disadvantage. Indeed, as noted, the state
does not dispute on appeal that the issue was raised below.
Those latter circumstances persuade us that the
issue before us—the sufficiency of the evidence to support a finding that defendant engaged in an unauthorized
use of his half-sister’s vehicle within the meaning of ORS
164.135—is one that defendant adequately preserved for our
review, notwithstanding variations of the fact that arguments on appeal differed from arguments made to the trial
court. See State v. Hollingsworth, 290 Or App 121, 126-27,
415 P3d 83 (2018) (issue was preserved for appellate review
where it was raised and ruled on in trial court and circumstances gave trial court and opposing party fair opportunity
to respond to the issue).
As for the merits, in view of Civil, the trial court
should have granted defendant’s motion for judgment of
acquittal. Civil holds that ORS 164.135(1)(a), the only provision under which the state charged defendant with UUV,
does not apply where, as here, the defendant comes into possession of the vehicle through an agreement with the owner.
283 Or App at 415-18. Said another way, Civil stands for the
proposition that, to prove an unauthorized taking, operating, riding in, or other use in violation of ORS 164.135(1)(a),
the state must present sufficient evidence to support a finding that the defendant did not come into possession of the
vehicle in question through an agreement with the owner.
Here, the state did not do that. On the contrary, the state’s
case affirmatively established that defendant came into possession of the vehicle through an agreement with his sister.
Under Civil, then, defendant was entitled to entry of judgment of acquittal on the charge of UUV.
Reversed in A168630; affirmed in A168631.
