178
Argued and submitted January 16, 2020, affirmed October 13, 2021, petition for
review denied March 24, 2022 (369 Or 505)
STATE OF OREGON,
Plaintiff-Respondent,
v.
TRACY LEE PHILLIPS,
Defendant-Appellant.
Coos County Circuit Court
18CR01187; A167826
501 P3d 537
In this criminal case, defendant appeals his conviction of first-degree theft
and unauthorized use of a vehicle (UUV). Defendant argues on appeal that the
stolen utility trailer is not a vehicle within the meaning of the UUV statutes,
and thus the trial court erred by denying his motion for judgment of acquittal
and instructing the jury that the trailer was a vehicle. In a separate assignment, defendant argues that the trial court erred by failing to provide the jury
with a lesser-included instruction of third-degree theft, on the basis that the
state did not prove that the trailer was worth more than $1,000, as required
for first-degree theft. Held: The text, context, and applicable legislative history
demonstrated that the term vehicle, as used in the UUV statute, includes nonmechanized conveyances, including the utility trailer in this case. The trial court
therefore did not err by denying the motion for judgment of acquittal and by
instructing the jury that the trailer was a vehicle under the UUV statute. The
conflicting evidence about the trailer’s value presented a fact question for the
jury as to whether the trailer was worth more than or less than $1,000, and
therefore, the court erred by failing to instruct the jury for the lesser-included
third-degree theft crime. However, because in this case the jury’s determination
of value would not have been changed by receiving the lesser-included instruction, the court’s error was not harmful to defendant.
Affirmed.
Martin E. Stone, Judge.
Joshua B. Crowther, Deputy Chief Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 315 Or App 178 (2021) 179
Before Lagesen, Presiding Judge, and Powers, Judge,
and Sercombe, Senior Judge.
SERCOMBE, S. J.
Affirmed.
180 State v. Phillips
SERCOMBE, S. J.
Defendant appeals a judgment convicting him of
theft in the first degree, ORS 164.055, and unauthorized
use of a vehicle (UUV), ORS 164.135.1 On the UUV charge,
defendant contends that the trial court should not have
instructed the jury that the purloined utility trailer was a
“vehicle” under the UUV statute, and that the court should
have otherwise acquitted him of the UUV charge because
his towing of a utility trailer used to transport landscaping
equipment was not the use of a “vehicle” under ORS 164.135.
On the first-degree theft charge, defendant claims that the
trial court erred in failing to instruct the jury on a lesser-included theft in the third-degree charge. We conclude that
the jury was properly instructed on the UUV charge and
that defendant was culpable for the UUV offense because
“vehicle,” as used in the UUV statute, includes a nonmechanized trailer used for carrying or transporting personal property. We also conclude that the court erred in failing to instruct the jury of the lesser-included theft charge,
but that the error was harmless.2 Accordingly, we affirm.
Early in the morning of October 28, 2017, defendant stole a utility trailer from the South Coastal Business
Employment Corporation (SCBEC), attaching the utility
trailer to his truck and leaving the business premises with
it. The trailer was fully enclosed with a skylight on the roof
and was designed to be towed behind a motor vehicle. SCBEC
used the utility trailer to transport landscaping equipment
and supplies for its youth work-preparedness program.
1
At the time of the crime, ORS 164.135(1) provided, in part, that,
“(1) A person commits the crime of unauthorized use of a vehicle when:
“(a) The 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 has since been amended by Oregon Laws 2019, chapter 530,
section 1, to among other things, remove “rides in” from the list of prohibited
conduct. We cite and construe ORS 164.135 (2017) in this opinion.
2
In a supplemental brief, defendant contends that the court committed
structural error by instructing the jury that it could return a nonunanimous
guilty verdict. That contention was rejected by the Oregon Supreme Court in
State v. Flores Ramos, 367 Or 292, 319,
478 P3d 515 (2020). Further, the record
reveals that each verdict was unanimous; therefore, despite the erroneous jury
instruction allowing for nonunanimous verdicts, the error in this case was harmless beyond a reasonable doubt.
Id. at 334.
Cite as
315 Or App 178 (2021) 181
Defendant was charged with theft in the first
degree, ORS 164.055,3 for “theft of a utility trailer, of the
value of $1,000 or more,” and unauthorized use of a vehicle,
ORS 164.135(1)(a), based on the allegation that he did “take,
operate, exercise control over, or otherwise use a utility
trailer, without the consent of the owner.” At trial, defendant
moved for a judgment of acquittal on the UUV charge, arguing that the utility trailer was not a “vehicle” for purposes
of the UUV statute. That motion was denied. Defendant
objected to the giving of Uniform Criminal Jury Instruction
1800 on the UUV charge, and that objection was overruled
by the trial court, with the court giving this instruction to
the jury:
“Unauthorized Use of a Vehicle by Taking. … In this
case to establish the crime of unauthorized use of a vehicle,
the State must prove beyond a reasonable doubt the following elements: The act occurred on or about October 29
and October 30, 2017; [defendant] knowingly took, operated,
exercised control over, or otherwise used a vehicle, a utility
trailer, as described in the charge, which was owned by South
Coast Business Employment Corporation; and [defendant]
knowingly did not have the consent of the owner.
“Definitions. Definition of a vehicle includes such things
as trailers, sailboats, gliders, and semi-trailers in addition
to motor propelled vehicles. It is every device in, upon, or
by which any person or property is or may be transported or
drawn.”
(Emphases added.)
Defendant contended below, and renews his contention on appeal, that the jury instruction misstated the
law, and that he was entitled to a judgment of acquittal,
because the utility trailer was not a “vehicle” under the statute. Defendant argues that the text of ORS 164.135(1)(a)—
specifically the proscription of the use of another’s “vehicle,
boat, or aircraft”—suggests a legislative intent that “vehicle”
3
ORS 164.055(1)(a) provides, in relevant part:
“(1) A person commits the crime of theft in the first degree if, by means
other than extortion, the person commits theft as defined in ORS 164.015
and:
“(a) The total value of the property in a single or aggregate transaction
is $1,000 or more.”
182 State v. Phillips
be a self-propelling, mechanized piece of motor equipment
capable of transporting goods or persons on the highway.
He reasons that boats and aircraft are self-propelled and
that vehicles should be similarly categorized because of
their association with boats and aircraft in the text of ORS
164.135(1)(a).4
Relying on State v. Eastep, 361 Or 746,
399 P3d 979
(2017), defendant argues that the Supreme Court requires a
“vehicle” under the statute to be equipment that is capable
of being operated, and that operation necessarily requires
self-propulsion as a means of conveyance. Thus, a trailer is
not a “vehicle” because it does not operate by itself to convey
persons or property. Defendant concludes that the legislative history of ORS 164.135(1)(a) supports that view of the
statute.
The state responds that the plain meaning of “vehicle” does not include self-propulsion as a necessary quality, that the legislature distinguished “motor vehicles”—
vehicles that are self-propelled—from “vehicles” in the text
of ORS 164.135(1)(a) and related statutes so that the meanings of both words are not the same, and that the legislative
history of the term supports a broader meaning. We agree
with the state’s reasoning.
Our role in construing the term “vehicle” in ORS
164.135(1)(a) is to determine the meaning that the legislature most likely intended, based on an examination of statutory text, other statutory context, legislative history, and
applicable rules of construction. State v. Gaines, 346 Or 160,
171-72,
206 P3d 1042 (2009). We are not constrained in the
resolution of this legal question by the determination of the
trial court or the contentions of the parties. Stull v. Hoke,
326 Or 72, 77,
948 P2d 722 (1997) (“In construing a statute,
this court is responsible for identifying the correct interpretation, whether or not asserted by the parties.”).
The Supreme Court construed the meaning of
“vehicle” in ORS 164.135(1)(a) in Eastep. In that case, the
4
Defendant relies on the principle of “noscitur a sociis” which is an “old
maxim which summarizes the rule both of language and of law that the meaning
of words may be indicated or controlled by those with which they are associated.”
State v. Walker, 356 Or 4, 15 n 5,
333 P3d 316 (2014).
Cite as
315 Or App 178 (2021) 183
defendant was convicted of UUV for selling another person’s
inoperable and disrepaired truck for scrap. The court concluded that the ordinary meaning of “vehicle” under ORS
164.135 was “broad enough to include cars and trucks that
may not currently be in operating condition, even if in need
of extensive repairs,” but that in light of an earlier case construing the meaning of “vehicle” in the UUV statute, the
condition of a car or truck must be operable to the extent
that it “not be in such a state of disrepair as to constitute a
‘wrecked’ vehicle.”
361 Or at 757.
That intended meaning of “vehicle” with respect
to its disrepair or operability is immaterial to the question
at hand—whether a device must be capable of transporting
persons or property on its own to be a “vehicle” under ORS
164.135(1)(a). A trailer may be operable whether or not it is
self-propelled. It can be operated through manipulation by
a person or a separate device. Here, the utility trailer was
operated by defendant by towing it along the street.5
Eastep’s discussion of the plain meaning of “vehicle”
and its legislative history is instructive. The court began its
textual analysis by explaining,
“Webster’s defines a ‘vehicle’ as ‘5 : a means of carrying or
transporting something : conveyance: as a : a carrier of
goods or passengers … specif : motor vehicle … b : a
container in which something is conveyed … c : a piece
of mechanized equipment … d : a propulsive device.’
Webster’s Third New Int’l Dictionary 2538 (unabridged ed
2002). Other dictionaries supply similar definitions. See,
e.g., Funk & Wagnalls New Standard Dictionary of the
English Language 2637 (1963) (similarly, ‘[t]hat in or on
which anything is or may be carried; … conveyance’).
“Those definitions do suggest that a ‘vehicle’ is defined
in terms of its function, namely, transportation.”
361 Or at 751 (omissions in Eastep) (footnote omitted).
As applied here, those definitions suggest that
a “vehicle” is nothing more than a means for carrying or
5
Under the reasoning in Eastep, if the trailer were in such a state of disrepair that it could not be manipulated or operated and was useful only as scrap,
it would not be a “vehicle” capable of unauthorized use. The operability of the
trailer is beside the point here.
184 State v. Phillips
transporting persons or property. Webster’s defines the word
in precisely that way (“a means of carrying or transporting something”), with a “motor vehicle” or “mechanized
equipment” or “propulsive device” being types of a “vehicle,”
rather than its necessary essence. Under the plain meaning
of the term, a trailer—or a horse-drawn carriage, parade
float, or any other towed conveyance—would be a “vehicle”
because it functions to carry or transport persons or property. A device does not need to be self-propelled in order to
carry or transport persons or property.
The Eastep court then analyzed the meaning of
“vehicle” in ORS 164.135(1)(a) in light of the context of the
statute, including the “prior versions of the statute, as well
as its enactment history.” 361 Or at 754. The most immediate context of the term “vehicle” in ORS 164.135(1)(a) are
the remaining words in the statute. Force v. Dept. of Rev.,
350 Or 179, 188,
252 P3d 306 (2011) (“ ‘[C]ontext’ includes,
among other things, other parts of the statute at issue.”); see
also ORS 174.010 (“[W]here there are several provisions or
particulars such construction is, if possible, to be adopted as
will give effect to all.”).
As noted, ORS 164.135(1)(a) defines the UUV crime
as when a person “takes, operates, exercises control over,
rides in or otherwise uses another’s vehicle, boat or aircraft
without consent of the owner.” Defendant argues that the
statute broadly covers “joy-riding,” and, accordingly, narrowly construes “vehicle” to mean devices that can be joyfully ridden, that is, that are self-propelled by manipulation
of an occupant of the vehicle. Such a construction necessarily implies that unauthorized use only includes situations
where a person is present in the vehicle as an operator or
a passenger when the vehicle is being operated by another,
or—in the words of the statute—when a person “operates
… [or] rides in” the vehicle.
But the statute proscribes more than that. It defines
UUV to include instances when a person “takes, … exercises control over, … or otherwise uses another’s vehicle.”
Relying upon the legislative history of the statute, we noted
in State v. Douthitt, 33 Or App 333, 338,
576 P2d 1262 (1978),
that
Cite as
315 Or App 178 (2021) 185
“[t]he purpose of the language, ‘takes, operates, exercises
control over, rides in or otherwise uses,’ is to prohibit not
only the taking or driving of another’s vehicle without permission, but, also, to prohibit any unauthorized use of the
vehicle.”
When a person tows a means of conveyance, that
person takes, exercises control over, and uses the device in
ways other than operating it or riding in it. Construing “vehicle” to include devices that are not self-propelled gives force
to the entire wording of the statutory section. “As a general
rule, we construe a statute in a manner that gives effect,
if possible, to all its provisions.” Crystal Communications,
Inc. v. Dept. of Rev., 353 Or 300, 311,
297 P3d 1256 (2013).
Defendant’s suggested limitation of “vehicle” to a particular
type of vehicle and “use” as confined to the operation of that
type of vehicle is inconsistent with the context of the statute’s more broadly written text.
Defendant’s construction of the meaning of “vehicle”
in ORS 164.135(1)(a)—as excluding trailers, carts, wagons,
carriages, or other non-self-propelled devices—is inconsistent with the legislative history of the statute. ORS 164.135
was enacted as part of a revised criminal code recommended
by the Criminal Law Revision Commission. Or Laws 1971,
ch 743, § 134. As noted by Eastep,
“A subcommittee of the commission addressed a proposed
draft of what is now ORS 164.135, based on the Model
Penal Code, § 223.9, and New York Revised Penal Law,
§ 165.05 (1965). Most of its discussion concerned the types
of vehicles that would be included—specifically, whether
the statute should be limited to ‘motor-propelled’ vehicles
or should embrace other vehicles such as gliders, sailboats,
and bicycles. See generally Tape Recording, Criminal Law
Revision Commission, Subcommittee No. 1, Apr 6, 1968,
Tape 2, Side 2 (statements of committee members and
Commission Project Director Paillette). Ultimately, the
subcommittee agreed to include gliders and sailboats, but
not bicycles, and so it agreed on wording that referred to a
‘vehicle, boat, or aircraft.’ Id.
“The subcommittee also briefly discussed the prohibited conduct set out in the proposed draft, which included
taking, operating, exercising control over, riding in, or
186 State v. Phillips
otherwise using another’s vehicle, boat, or aircraft. Project
Director Paillette explained that the proposed legislation would broaden the conduct currently prohibited in
the existing joy-riding statute. The subcommittee then
discussed whether ‘entering’ a vehicle without consent,
also prohibited under then-existing law, would amount
to unauthorized use. Members tentatively agreed that,
to violate the UUV statute, a person would need to ‘exercise control,’ or otherwise start or somehow ‘use’ the vehicle. Tape Recording, Criminal Law Revision Commission,
Subcommittee No. 1, Apr 6, 1968, Tape 2, Side 2 (statements
of Rep Elder, Paillette, and others); see also Tape Recording,
Criminal Law Revision Commission, July 19, 1968, Tape
9, Side A (statement of Sen Burns, Chair of Subcommittee
No. 1).”
361 Or at 756-57.
The commentary to the new Criminal Code
explained:
“This section covers the ‘joy-riding’ type of offense where
the actor makes unauthorized use of another’s vehicle but
without the intent to steal it or permanently deprive the
owner of its use. The purpose of the language, ‘takes, operates, exercises control over, rides in or otherwise uses,’ is to
prohibit not only the taking or driving of another’s vehicle
without permission but also, to prohibit any unauthorized
use of the vehicle.
“The first draft of the section limited its coverage to
‘motor-propelled’ vehicles only; however, the Commission
believed that the proposal should also protect owners of
such things as trailers, sailboats and gliders.”
Commentary to Criminal Law Revision Proposed Oregon
Criminal Code, Final Draft and Report § 134, 142 (July
1970) (second emphasis added).6
Defendant argues that “trailers” in this context
means conveyances occupied by persons “such as a travel
trailer or motor home.” That begs the question. The plain
6
We note that the April 6, 1968, subcommittee discussion of expanding
the scope of the unauthorized use statute to cover “vehicles,” as opposed to
“motor-propelled vehicles,” explicitly contemplated that the expanded coverage
would include “vehicles such as gliders, balloons, sailboats, and horse drawn
vehicles.” Minutes, Criminal Law Revision Commission, Subcommittee No. 1,
Apr 6, 1968, p 12. Horse-drawn vehicles are carts or trailers.
Cite as 315 Or App 178 (2021) 187
meaning of “vehicle” noted earlier was “a carrier of goods or
passengers.” There is no sound textual or contextual reason
to confine “such things as trailers,” as a species of “vehicle,”
to something less, as a carrier only of passengers.
Thus, the legislative history of ORS 164.135(1)(a)
confirms that the term “vehicle” includes “such things as
trailers” and that the statute proscribes a broad range of
conduct, including towing as a method of exercising control over a means of conveyance. The trial court did not
err in instructing the jury that “vehicle” included a “utility
trailer,” and in denying defendant’s motion for judgment of
acquittal.7
Defendant also assigns error to the failure of the
trial court to give a lesser-included theft in the third-degree
jury instruction. Under ORS 164.043, a person commits the
crime of theft in the third-degree if “the person commits
theft as defined in ORS 164.015” and “the total value of the
property in a single or an aggregate transaction is less than
$100.” Defendant contended at trial that the evidence did
not prove that the trailer was worth more than $1,000, a
benchmark necessary to prove the charged crime of theft
in the first degree.8 Defendant asserted that the jury could
nonetheless find that the trailer was worth less than $100,
so that the jury should have been instructed on the lesser-included offense of third-degree theft.9 “We review refusal to
give a jury instruction for legal error and view the evidence
in the light most favorable to the party that requested the
7
The Commentary to Criminal Law Revision Commission Proposed Oregon
Criminal Code, Final Draft and Report § 134, 143 (July 1970), while noting that
the “ ‘taking or using’ statute does not define or incorporate by reference any
other statutory definition of ‘vehicle,’ ” notes a definition of “vehicle” in the motor
vehicle code at the time (that “vehicle” includes “every device in, upon or by which
any person or property is or may be transported or drawn”). That suggests that
the drafters of ORS 164.135(1)(a) intended “vehicle” to include devices by which
property may be drawn or towed.
8
As noted, ORS 164.055(1)(a) provides that a person commits theft in the
first degree by committing theft where the “total value of the property in a single
or aggregate transaction is $1,000 or more.”
9
There was no evidence that the trailer had any particular value that was
less than $1,000. Defendant did not request a jury instruction for second-degree
theft. Under ORS 164.045, a person commits the crime of theft in the second
degree if the person commits theft and “the total value of the property in a single
or an aggregate transaction is $100 or more and less than $1,000.”
188 State v. Phillips
instruction.” State v. Whiteside, 303 Or App 427, 428,
464
P3d 452, rev den,
366 Or 827 (2020).
A criminal defendant is entitled to a lesser-included
jury instruction when there is “evidence, or an inference
which can be drawn from the evidence, which supports the
requested instruction so that the jury could rationally and
consistently find the defendant guilty of the lesser offense
and innocent of the greater.” State v. Washington, 273 Or
829, 836,
543 P2d 1058 (1975). That right is conferred explicitly by ORS 136.465:
“In all cases, the defendant may be found guilty of any
crime the commission of which is necessarily included in
that with which the defendant is charged in the accusatory
instrument or of an attempt to commit such crime.”10
ORS 136.460 supplements the general rule of ORS
136.465. Or Laws 1997, ch 511, § 1. ORS 136.460 more particularly applies when, as here, the lesser-included charge
is a different degree of, or an attempt to commit, the same
criminal offense. The statute requires a particular order of
deliberation for the charges:
“(1) Upon a charge for a crime consisting of different
degrees, the jury may find the defendant not guilty of the
degree charged in the accusatory instrument and guilty of
any degree inferior thereto or of an attempt to commit the
crime or any such inferior degree thereof.
“(2) The jury shall first consider the charged offense. Only
if the jury finds the defendant not guilty of the charged
offense may the jury consider a lesser included offense. If
there is more than one lesser included offense, the jury shall
consider the lesser included offenses in order of seriousness. The jury may consider a less serious lesser included
offense only after finding the defendant not guilty of any
more serious lesser included offenses.”
ORS 136.460.
Defendant contends that the most favorable inference from the evidence would allow the jury to find that
defendant was guilty of third-degree theft because the
10
ORS 136.465 was originally codified as ORS 136.660 in the 1953 Oregon
Revised Statutes.
Cite as 315 Or App 178 (2021) 189
utility trailer only had nominal value that necessarily was
less than $100. The SCBEC manager testified at the April
2018 trial that the trailer was purchased in 2008 for $2,000.
She added that it was not used very often although it was
used initially “a lot.” The prosecutor inquired further:
“Q Okay. And how much is that utility trailer worth?
“A When we had the insurance agency, because it was
insured, review it for our loss, their estimate was $2,195.”
That was the only evidence of the value of the
trailer. Defendant testified that he did not know how much
the trailer was worth, but he disputed that it was worth
$2,000. On cross-examination of defendant about his claim
that he borrowed the trailer by permission, he testified that
he did not know the value:
“Q Didn’t you find that suspicious, that someone you’ve
never met face to face, got permission over a phone, said he
was going to meet you that morning, didn’t show up when
you took this $2,000 utility trailer?
“A I wouldn’t say it was valued at that. I don’t know how
much it’s valued at.”
Defendant contends that the evidence—that he
believed the trailer was worth something different than
$2,000 and that the trailer was purchased nine years previously for that sum—was sufficient to create a jury question on whether the value of the trailer was less than $100
and on what degree of the crime of theft for which he might
be accountable. The state concedes that the court erred in
failing to give a lesser-included instruction for third-degree
theft, and, for purposes of this opinion, we accept that
concession.
Relying on State v. Zolotoff, 354 Or 711,
320 P3d
561 (2014), the state argues that the error was harmless.
In Zolotoff, the Supreme Court concluded that the trial
court erred in failing to give a jury instruction of attempted
possession of a weapon following a trial on possession of a
weapon by an inmate and that the error was prejudicial to
the defendant. The court noted that State v. Naylor,
291 Or
190 State v. Phillips
191, 197-99,
629 P2d 1308 (1981), held that the failure to
give a lesser-included charge instruction could be prejudicial
when a reviewing court was “unable to say what the verdict
would have been had the theory of the defense been properly
presented to the jury.” That was because a jury might conclude that the defendant might be guilty of “some apparent
violation of the criminal code but not of the crime charged”
but be coerced into “finding a defendant guilty of a crime
greater than that which the jury believes he has committed.” Id. at 199. Naylor alternatively reasoned that the failure to give a lesser-included instruction could be prejudicial
because the case would be “submitted to the jury without
the complete statement of the law necessary for the jury to
properly exercise its function in the trial of [the] defendant.”
Id. at 197-98.
Zolotoff reasoned that the subsequent adoption of
ORS 136.460, requiring that the jury first find the defendant not guilty of the charged offense before considering the
lesser included offense of a different degree or an attempted
offense, undercut the “unable to say” and coercive effect
rationale for finding prejudice announced in Naylor:
“[W]e agree that ORS 136.460(2) supplants that aspect of
the court’s reasoning. The “acquittal first” procedure under
ORS 136.460(2) mandates that jurors decide whether a
defendant is guilty of the charged offense before they consider a lesser-included offense, and jurors must follow that
order of deliberation, even if it is, to some extent or in some
sense, coercive.
“…
“With the enactment of ORS 136.460(2), an appellate
court appropriately may reason that, had the jury received
an instruction on a lesser-included offense, it also would
have received an instruction under ORS 136.460(2).
Further, an appellate court also may reason that the jury
would have followed that instruction and made a finding on
the charged offense before considering the lesser-included
offense. … As a result, there may be many instances in
which an appellate court will be able to conclude from the
evidence, the arguments, and the instructions that the
jury would have reached the same verdict on the charged
offense even if it also had received instruction on the
lesser-included offense. In other words, in many instances,
Cite as 315 Or App 178 (2021) 191
a trial court’s failure to give a lesser-included instruction,
although error, may be harmless error.”
354 Or at 716, 718-19 (citation omitted).
Under Perida-Alba v. Coursey, 356 Or 654,
342
P3d 70 (2015), this case presents one of those instances.
In Perida-Alba, the Supreme Court explained some of
the instances suggested in Zolotoff in which an appellate court will be able to conclude from the evidence, the
arguments, and the instructions that the jury would have
reached the same verdict on the charged offense even if it
also had received instruction on the lesser-included offense.
In Perida-Alba the petitioner sought post-conviction relief,
claiming ineffective assistance of counsel because of counsel’s failure to request a jury instruction on a lesser-included
robbery offense to the charged offense of first-degree robbery. The elements of both crimes were the same except that
first-degree robbery required the additional element that
the person “uses or attempts to use a dangerous weapon.”11
The petitioner claimed that there was no reason
to fail to request a lesser-included charge instruction and
that the failure to do so enhanced the likelihood that the
jury would convict him of the greater offense. The post-conviction court agreed and granted post-conviction relief
and we affirmed that decision.
The Supreme Court reversed on review and examined the circumstances in which “courts have recognized
… that the absence of an instruction on a lesser-included
offense can affect the jury’s verdict.” 356 Or at 664. Relying
upon guidance from Beck v. Alabama, 447 US 625,
100 S Ct
2382,
65 L Ed 2d 392 (1980), the court explained:
“Beck recognized that the absence of an instruction on a
lesser-included offense can impermissibly enhance the risk
of an unwarranted conviction when two factors are present. First, the element that elevates the lesser-included
offense to the greater one must be doubtful. Second, and
11
Under ORS 164.395, a person commits third-degree robbery,
“if in the course of committing or attempting to commit theft … the person
uses or threatens the immediate use of physical force upon another person
with the intent of: [p]reventing or overcoming resistance to the taking of
property or to retention thereof immediately after taking.”
192 State v. Phillips
more importantly, there must be substantial evidence of a
serious lesser offense. In those circumstances, the absence
of an instruction on the lesser offense puts the jury to
the choice of either convicting the defendant of a doubtful greater offense or acquitting the defendant altogether,
despite the defendant’s apparent guilt of a serious lesser-included offense.”
356 Or at 665 (footnote omitted).
Perida-Alba is instructive here. The element of
first-degree theft that lifted the theft to that degree—that
the trailer was worth more than $1,000—was not doubtful.
The manager testified that the trailer was purchased nine
years previously for $2,000 and that it had not been used
very often other than after the initial purchase. The owner’s
insurer gave the trailer a present value of $2,195. The evidence that the trailer was worth less (“I wouldn’t say it was
valued at [$2,000]”) was not substantial.12 In light of that
evidence, the jury’s verdict demonstrates that it would not
have considered the offense of third-degree theft even if it
had been instructed on that offense.
Nor was the jury confused in reaching its verdict
because of the absence of an explanation that it could reach
a different verdict. As recognized in Zolotoff,
“[t]here may be circumstances in which the elements of
the charged crime are clearer when they are viewed in
contrast with the elements of a lesser-included offense. So,
for instance, an instruction on the elements of a lesser-included offense may disclose a legal distinction that is not
otherwise patent and that would be particularly helpful to
the jury in deciding whether the defendant is in fact guilty
of the charged offense. In determining whether an error in
failing to instruct on a lesser-included offense is harmless,
the question for an appellate court is whether the court can
conclude from the evidence, arguments, and instructions
in the particular case that the jury would have reached the
same conclusion had it been correctly instructed.”
354 Or at 719.
12
Under OEC 701(1) the opinion of a lay witness must be “[r]ationally based
on the perception of the witness.” Defendant’s testimony about what he “wouldn’t
say” was not an opinion as to any particular value, much less a value of less than
$100. There was no evidentiary basis for any lay opinion of value, a description of
defendant’s perception of the trailer and an explanation of its perceived value.
Cite as 315 Or App 178 (2021) 193
It would not be particularly helpful to the jury in
deciding whether the trailer was worth more than $1,000 (to
justify a first-degree theft instruction) for it to be instructed
that the trailer could have been worth less than $100 (to
justify conviction of a theft of a lesser degree). The jury
was asked to determine the value of the trailer in deciding whether defendant was guilty of first-degree theft. That
determination would not be easier or different if the jury
was told it could make the same determination in deciding
whether defendant was guilty of third-degree theft, with a
ceiling of $100. The calculation of the value of the trailer
was just that—without regard to whether first-degree or
third-degree theft was charged.
This is not a case where a jury determination of the
operation of a charged offense would be informed by comparison with a qualitatively different, lesser-included offense.
The giving of the third-degree theft jury instruction would
not inform the jury on how to resolve the valuation question.
Consequently, the failure to give that instruction did not
harm defendant and provide a basis for reversal.
Affirmed.
