479
Submitted May 29, 2020, reversed and remanded July 21, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
HILARY PAIGE WITT,
Defendant-Appellant.
Washington County Circuit Court
18CR18939; A168873
493 P3d 543
In this criminal appeal, defendant contests her conviction of unauthorized
use of a vehicle (UUV). Among other assignments of error, defendant contends
that the trial court erred by denying her motion for judgment of acquittal and by
receiving a nonunanimous verdict. Held: Viewing the evidence in the light most
favorable to the verdict, there was sufficient evidence in the record to conclude
that defendant knowingly operated another’s vehicle. In this case, the dubious
circumstances surrounding defendant’s acquisition of the car, use of “shaved”
keys to operate the car, and testimony from the car’s true owner provided enough
evidence of UUV to send the case to the jury. However, it was plainly erroneous
to enter judgment on the nonunanimous jury verdict.
Reversed and remanded.
Ricardo J. Menchaca, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Kistler, Senior Judge.
KISTLER, S. J.
Reversed and remanded.
480 State v. Witt
KISTLER, S. J.
Defendant appeals a judgment of conviction for
the unlawful use of a vehicle (UUV). See ORS 164.135(1)(a)
(defining that offense). She raises primarily two issues on
appeal. She argues that the trial court should have granted
her motion for a judgment of acquittal because no reasonable juror could find that she knowingly was driving a stolen car. Alternatively, she argues that the judgment should
be reversed because a nonunanimous jury found her guilty.
We agree with defendant’s second argument but not her
first. We accordingly reverse the trial court’s judgment and
remand this case for further proceedings.1
On January 12, 2018, the owner of a 1993 Subaru
Impreza reported that his car had been stolen in Southeast
Portland. Approximately three months later, on March 9,
Officer Welch noticed an older model Subaru at a gas station
in Tigard. Although Welch was not aware of the reported
theft, the Subaru caught his eye because older models of
that car have a basic ignition system, which makes them
a target for thieves. As Welch explained, a thief can use a
“shaved key, a key that’s been filed or shaved down,” to open
an older model Subaru and start it. Welch entered the car’s
license plate on a computer in his patrol car, which showed
that the Subaru had been reported as stolen.
No one was in the Subaru when Welch first saw it.
Shortly afterwards, he saw defendant come out of the gas
station, get into the Subaru, and begin driving towards
the north entrance of the gas station where Welch’s car
was parked. Defendant “came up right behind [Welch] at
the entrance where [his car] was at, and almost immediately put her car in reverse and actually drove to the other
entrance,” even though Welch’s car was not blocking her
exit. Welch followed defendant’s car until backup arrived
and then stopped her. He testified that, although stopping
a person in a suspected stolen car can entail a higher risk
1
If we agreed with defendant’s first argument, she would be entitled to an
acquittal, not a reversal and a remand with the possibility of a retrial. We accordingly address both issues. Because defendant challenges the ruling on her motion
for judgment of acquittal, we state the facts in the light most favorable to the
state.
Cite as 313 Or App 479 (2021) 481
than a normal traffic stop, defendant did not resist when
Welch stopped and later questioned her.
Welch told defendant that the car she was driving
had been reported as stolen. Defendant responded that she
had bought the car a few weeks earlier after seeing it for
sale on Craigslist. She gave Welch a generic description of
the seller (older white male) and told him that she had paid
$550 for it. She could not remember, however, the seller’s
name, phone number, email, or how to get in touch with
him, nor could she remember where the sale had taken
place. When asked, she did not produce “any registration,
title, or any other documents that would show ownership.”
She said that she had a bill of sale either in her glove box or
in her apartment. However, when Welch checked the glove
box, he did not find a bill of sale or “any documents showing
that she was supposed to be in possession of the car.”
Welch noticed that “there was a lot of property in
the vehicle”—“clothes, hygiene items, and stuff that was
leaking, and food.” He also found two keys. The head of the
first key had a rubber or plastic cover that “looked like it
had been melted or like scratched down, and you couldn’t
see a logo on either side of it.” The blade of that key had been
shaved and had “obvious tool marks all along” it. As Welch
explained, “it’s a lot thinner. It’s completely uneven in some
places.” The notches and ridges normally found on the blade
of a key had been shaved away, and what remained of the
blade was “so thin that [Welch] was actually concerned that
if [he] messed with it too much [he] might break it.”
Welch found a second key in a cup holder between
the driver’s seat and the front passenger’s seat. The head of
that key also had a rubber or plastic cover, which was not
damaged. Welch testified that “it had a Saturn logo on it. I
think it actually said Saturn on it.” The blade of that key
also had been shaved down but was not as thin as the first
one. When asked about the two keys, defendant told Welch
that they came with the car. She said that she used the first
key, the one with the defaced logo and the “very thin” blade
to operate the car. When asked whether she thought that
the keys looked “normal,” defendant replied that she thought
they were worn down because of age. Welch testified, “I
482 State v. Witt
remember specifically telling her that’s not really how this
is.”2
Welch agreed on cross-examination that the Subaru
did not have other indicia of theft, such as damage to the
steering column or broken windows. He testified on redirect, however, that, when a person has a shaved key for that
model year Subaru, there is no need to “damage the locks or
the ignition or the steering column to operate the vehicle or
access it.” A shaved key is enough to “unlock the door and
start the ignition.”
Defendant testified at trial and reiterated that she
did not know the car was stolen. During her testimony, she
introduced a document captioned “Bill of Sale,” which was
handwritten on a lined piece of notebook paper. The document is dated March 1, 2018, and identifies the actual owner
of the Subaru but describes him as “deceased.” The person
listed as the seller had the same last name as the owner and
purported to transfer “all rights, title, and interest” in the
Subaru on the deceased owner’s behalf. (The owner testified at trial and laughed when he saw himself identified as
“deceased” on the bill of sale. He testified that the Subaru
had been stolen from him, that he neither knew nor was
related to the person listed as the seller on the bill of sale,
and that he had not authorized the car’s sale.)
At trial, defendant provided additional details
about her acquisition of the Subaru, which she had not
remembered when Welch stopped her. She testified that she
had bought the car from a person who identified himself as
“John” and that the transaction had been completed at a
Safeway on SE 122nd Street and Powell Avenue in Portland.
She said that she gave John $500 in cash and that he gave
her the car along with the handwritten bill of sale. On cross-examination, she testified that John had not produced the
title to or registration for the car when he sold it to her, that
she had not attempted to register the car with the state, and
that John had not provided any evidence to show that he
had inherited the car or was otherwise authorized to sell it
2
In addition to Welch’s description of the keys, the state introduced photographs of the keys and the keys themselves as exhibits so that the jurors could
make their own assessment of the keys’ appearance.
Cite as 313 Or App 479 (2021) 483
on the deceased owner’s behalf. Finally, defendant acknowledged on direct examination that she had pleaded guilty to
felony theft in 2013 and 2014 and to misdemeanor theft in
2014, 2017, and 2018.
On appeal, defendant assigns error to the trial
court’s ruling denying her motion for judgment of acquittal. On that issue, the information alleged that defendant
“did unlawfully and knowingly take, operate, ride in, exercise control over and otherwise use a vehicle, to wit: 1993
Subaru Impreza Outback, without the consent of the owner,”
in violation of ORS 164.135(1)(a). At trial, the state did not
contend that defendant took the Subaru on January 12,
2018. Rather, it contended that, even if someone else stole
the Subaru, defendant knew that the Subaru was stolen
and, as a result, knew that she did not have the owner’s
consent to “operate, … exercise control over [or] otherwise
use” the Subaru. See ORS 164.135(1)(a) (prohibiting those
acts without the owner’s consent).
At trial and again on appeal, the parties disagree
whether the evidence was sufficient to permit a reasonable
juror to infer that defendant knew the Subaru was stolen.
See State v. Bell, 220 Or App 266, 269,
185 P3d 541 (2008)
(explaining that, even though ORS 164.135(1)(a) does not
specify a culpable mental state, the charging instrument in
that case alleged that the defendant had acted knowingly
and thus required proof of that mental state). We recently
have addressed that issue in a series of cases. See, e.g., State
v. Connelly,
298 Or App 217,
445 P3d 940 (2019); State v.
Pierce,
296 Or App 829,
440 P3d 98 (2019); State v. Korth,
269 Or App 238,
344 P3d 491 (2015). Although the answer
to that issue will vary depending on the facts and circumstances of each case, our cases provide some guidance. We
have recognized that evidence of general wrongdoing or
suspicious behavior, standing alone, will ordinarily not be
sufficient to permit a reasonable inference that a defendant
knew that the car he or she was using had been stolen.
Korth,
269 Or App at 246-47; State v. Shipe,
264 Or App 391,
398-99,
332 P3d 334 (2014). In reaching that conclusion, we
have found it telling that more specific indicia of theft—
for example, a shaved key, damage to the steering column,
484 State v. Witt
or the defendant’s awareness that there was no proof of
registration—were absent from the record. See Korth,
269
Or App at 247; Shipe,
264 Or App at 397-98.
Our decision in Shipe is illustrative. In that case,
the defendant was driving a truck that someone else had
stolen. See 264 Or App at 392 (noting that the truck had
been stolen while the defendant was incarcerated). The cab
of the truck contained evidence of drug use, stolen property,
and a case labeled “crime committing kit.”
Id. at 393. There
was also evidence that the defendant had lied when asked
who had let him use the truck; the defendant told an officer
that “Richey” had allowed him to use the truck when the
trier of fact could find that someone else (the defendant’s
girlfriend’s son) had let him use the truck.
Id. at 393, 398.
Although there was evidence in Shipe that the truck
had been stolen, we explained that there was no evidence
that the defendant was aware of that fact. Id. at 397-98. For
example, although the key that the defendant was using to
operate the truck did not in fact belong to the truck’s owner,
there was “no evidence that the key looked suspicious or that
the defendant knew that the key did not belong to anybody
who was authorized to use the truck.”
Id. at 397. Moreover,
although there was evidence that the truck had been damaged, there was no evidence whether “the windows, locks,
ignition, or wiring had been damaged or tampered with,”
which would have permitted a reasonable inference that
the truck had been stolen.
Id. Finally, although there was
no registration or proof of insurance, there was no evidence
that the defendant was aware that those indicia of ownership were missing.
Id. at 398.3
We explained that, although there was evidence
from which a reasonable juror could find that the defendant
3
As Shipe illustrates, a defendant’s connection to the stolen vehicle can matter. Specifically, the defendant in Shipe apparently used the stolen truck for only
a short period of time and thus would have had no reason to be aware of the
absence of registration or proof of insurance without some evidence to that effect.
See 264 Or App at 398. We have applied similar reasoning when the defendant
was merely a passenger in a stolen vehicle. See State ex rel Juv. Dept. v. Mitchell,
142 Or App 40, 44,
920 P2d 1103 (1996) (holding that, even though the vehicle’s
locks had been punched and the ignition area damaged, there was no evidence
that the defendant (a passenger) had noticed those issues).
Cite as
313 Or App 479 (2021) 485
knew that the person who had allowed him to use the truck
was involved in criminal activity, there was no evidence
from which a reasonable juror could find that the defendant
knew the truck had been stolen. Id. at 398. And, without
any evidence that the defendant knew the truck was stolen,
we discounted the significance of the defendant’s lie regarding the person who had permitted him to use the truck.
Id. at 398-99. We explained that a reasonable trier of fact
could have inferred that the defendant lied to avoid implicating his girlfriend’s son in the possession of the drugs,
stolen property, and “crime committing kit” that the truck
contained. Id. Our decision in Korth is to the same effect.4
In this case, Welch stopped defendant while she was
driving a stolen car. Although defendant told Welch that she
had purchased the car after seeing it for sale on Craigslist,
she had no registration, proof of insurance, or evidence of
ownership with her in the car. She explained that she had
bought the car from an “older, white male,” but she could
not remember where the sale had occurred, nor could she
remember the seller’s name, address, or contact information. She said that she had a bill of sale either in the glove
compartment or at home, but Welch could not find the bill of
sale or any indicia of ownership when he looked in the glove
compartment.
To be sure, defendant offered additional details at
trial. She testified that she had bought the car from “John”
and that the sale had been completed in a Safeway parking lot. Additionally, she introduced a document captioned
4
In Korth, an officer stopped the defendant who was driving a stolen Chevy
Silverado. 269 Or App at 240. In the bed of the truck, which was covered by a
canopy, the officer found two bags containing drug paraphernalia that the defendant initially denied were his.
Id. at 241. Next to the bags were a “ ‘couple huge
sets’ of ‘jiggle keys,’ ” which are “regular old keys that [people] use to steal Honda
Accords and Toyota Camrys … or other keys that sometimes car thieves will file
down” to steal other makes of cars.
Id. (brackets in Korth). We explained, however, that the defendant in Korth was using a valid key to operate the Silverado,
not the “jiggle keys” found in the back of the truck to steal Accords and Camrys.
Id. at 247. As in Shipe, we reasoned that a rational juror could find from that evidence that the defendant was involved in wrongdoing; however, the evidence did
not permit a reasonable inference that the defendant knew that the Silverado (as
opposed to other cars) had been stolen.
Id. Not only was the key that the defendant used to operate the Silverado valid, but there was no damage to the vehicle
that would suggest that that vehicle had been stolen.
Id.
486 State v. Witt
“Bill of Sale,” which was handwritten on a piece of notebook
paper. However, as defendant also testified at trial, “John”
provided her with no proof of ownership, such as a title or
vehicle registration, and he did not provide her with any
authorization that would permit him to sell the car on behalf
of the supposedly deceased owner. A reasonable juror could
find from that evidence that the John’s ownership of (and
authority to sell) the car was dubious at best and that defendant, despite her denials to the contrary, was aware of that
fact.
We need not decide whether those facts, alone,
would be sufficient for a reasonable juror to find that defendant was aware that John neither owned nor had authority
to sell the Subaru. In this case, the evidence showed that
one of the two keys that John gave defendant to operate the
Subaru had been shaved so fine that the officer feared it
would break if he handled it too much, and the logo on the
head of that key had been obscured. The other key was for a
Saturn, not a Subaru, and also was shaved, although not as
severely as the first key. A reasonable juror could find from
that evidence, coupled with sketchy evidence of the sale, that
defendant knew that John neither owned nor had authority
to sell the Subaru. Moreover, although defendant told the
officer that she thought the keys were just worn with age, a
reasonable juror could find from an examination of the keys
that age alone did not explain their condition. And age does
not explain why one of the keys was for another make of car.
On this record, the trial court correctly denied defendant’s
motion for judgment of acquittal.
Defendant also assigns error both to the trial court’s
instruction that the jury could convict the defendant if 10
out of the 12 jurors agreed and to the court’s acceptance of
the jury’s nonunanimous (10-2) verdict. Defendant acknowledges that she did not raise those issues below but argues
that the plain error doctrine permits her to raise them for
the first time on appeal. We agree with defendant that, after
the Court’s decision in Ramos v. Louisiana, 590 US ___,
140
S Ct 1390,
206 L Ed 2d 583 (2020), the error is plain, and we
exercise our discretion to correct that error for the reasons
stated in State v. Ulery,
366 Or 500, 503-04,
464 P3d 1123
Cite as
313 Or App 479 (2021) 487
(2020). We accordingly reverse the judgment of conviction
and remand for further proceedings.5
Reversed and remanded.
5
Given our resolution of the instructional issue, we decline to reach defendant’s two remaining assignments of error. One involves a trial court ruling prohibiting defendant from asking Welch on cross-examination whether he “eventually was provided with what [purported] to be a bill of sale for this car.” The state
does not defend the merits of that ruling on appeal, and we assume that the issue
will not arise again if the case is retried. The other assignment involves a pretrial
ruling that, if defendant testified, the state could ask her on cross-examination if
she previously had been convicted of theft. On appeal, defendant argues that we
should overrule some of our prior opinions addressing that issue and advances
unpreserved due process arguments in support of that claim. We decline to
address those unpreserved arguments on appeal and will address them if and
when they are properly before the court on appeal from any further proceedings
on remand.
