State v. Rexroad

                                        498

   Argued and submitted January 17, 2020; conviction on Count 1 reversed,
       remanded for resentencing, otherwise affirmed March 23, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    LARRY VINCENT REXROAD,
                       Defendant-Appellant.
                     Lane County Circuit Court
                       18CR20971; A170507
                                    

    Defendant appeals a judgment of conviction for one count of unauthorized
use of a vehicle (UUV) and one count of tampering with physical evidence. He
assigns error to the trial court’s denial of his motions for judgment of acquittal for
the two counts. Defendant challenged the conviction for tampering with physical
evidence on the ground that the state failed to prove that he knew the evidence
would be used in an upcoming proceeding. On the UUV conviction, defendant
argued that the state failed to prove that he exercised sufficient control of the
vehicle or that he had actual knowledge that it was stolen; the state responded
that defendant shared control of the vehicle with the person who stole it. Held: A
reasonable juror could infer that defendant had knowledge that he destroyed evidence related to an upcoming proceeding. Therefore, the trial court did not err by
denying a motion for judgment of acquittal on the count of tampering with physical evidence. With regard to the count of unauthorized use of a vehicle, the Court
of Appeals concluded that there was no evidence that defendant actually took,
operated, or used the vehicle as required by ORS 164.135 (2017). Defendant’s
only contact with the vehicle at issue was in his communications with the person
convicted of stealing it and advertising it for sale. Defendant never physically
possessed the vehicle at issue and lacked control for the purposes of principal
liability; accordingly, the trial court erred by denying his motion for judgment of
acquittal on that count.
     Conviction on Count 1 reversed; remanded for resentencing; otherwise
affirmed.



    Bradley A. Cascagnette, Judge.
  George W. Kelly argued the cause and filed the brief for
appellant.
   Daniel Norris, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
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 (2022)                         499

  JAMES, J.
   Conviction on Count 1 reversed; remanded for resentencing; otherwise affirmed.
500                                                    State v. Rexroad

          JAMES, J.

         Defendant appeals from a judgment of conviction
for one count each of unauthorized use of a vehicle (UUV)
(Count 1), ORS 164.135 (2017),1 and tampering with physical evidence (Count 2), ORS 162.295. In two assignments
of error he contends that the trial court erred in denying
his motions for judgment of acquittal on both charges. We
affirm as to the tampering charge, but agree with defendant
as to the UUV charge, and accordingly reverse defendant’s
conviction for UUV, remand for resentencing, and otherwise
affirm.

         On review of the denial of a motion for judgment of
acquittal, we view the facts in the light most favorable to
the state and evaluate those facts to determine whether a
rational trier of fact could have found the elements of the
offense beyond a reasonable doubt. State v. Cunningham,

, 

 (1994), cert den, 

,

, 

 (1995). To the extent that the
parties’ dispute about the motion for judgment of acquittal
“centers on the meaning of the statute defining the offense,
the issue is one of statutory construction,” which is a matter
of law that we review for legal error. State v. James, 

, 

 (2014) (internal quotation marks
omitted).

         On January 5, 2018, a Mahindra ATV worth
approximately $17,000 was stolen from the parking lot of All
Seasons Equipment. Detective Rick Lowe located the stolen
Mahindra parked at Tracey Coats’s house, which led to a
subsequent search and seizure of Coats’s cell phone. That
search revealed that within hours after the Mahindra was
stolen, Coats texted to a variety of recipients photos of the
ATV, including one photo of the odometer reading 3.1 miles,
a video of its dumping bed, and a link to the Mahindra website. One recipient of the text message was defendant. On
January 23, 2018, Coats was arrested for a different vehicle

    1
      The legislature amended ORS 164.135 in 2019, applicable to offenses committed on or after January 1, 2020. Or Laws 2019, ch 530. We apply the 2017
version of the statute, which was in effect when defendant allegedly committed
the offense.
Cite as 

 (2022)                              501

theft, and soon after he was charged with the theft of the
Mahindra and was later convicted of that crime.
         The search of Coats’s cell phone also revealed text
messages between Coats and defendant regarding another
stolen vehicle—one not the subject of this case. In early
December 2017, defendant sent Coats photos of a truck being
repaired at defendant’s workplace because it backfired when
it was driven at RPMs above 2,800. The photos included a
picture of the owner’s vehicle registration and home address.
Approximately a week after defendant sent the texts, and
after defendant’s workplace had completed the repairs and
returned the truck to its owner, the truck was stolen while
it was parked at the address listed on the vehicle registration in the photo. Additionally, on the day of the truck theft,
Coats used his phone to call defendant. Two minutes later,
Coats, who had no other connection to the truck other than
through defendant, texted an unspecified recipient concerning a vehicle that backfired at 2,800 RPMs: “2800rpms
and it studders [sic] hard in every gear! Why?” Less than a
minute later, Coats used the same phone to conduct several
internet searches for online Toyota forums about Toyotas
with a shuddering issue when driven at RPMs above 2,000.
         On March 14, 2018, Lowe, who knew about the text
conversations between defendant and Coats regarding the
vehicle thefts, went to defendant’s place of work to interview
him about the ongoing vehicle theft investigations. During
the interview, defendant acknowledged that although he
had received a photo of the Mahindra from Coats, he did not
know that it was stolen. He also admitted that he had previously sent a photo of the truck to Coats while it was at his
employer’s shop for repairs, but “basically shrugged” when
asked if he had sent Coats a copy of the vehicle’s registration.
         Defendant also permitted Lowe to look through
his cell phone with him. Although the prior data extraction
from Coats’s phone had revealed a variety of text messages between Coats and defendant in December 2017 and
January 2018 about the Mahindra and truck, there were no
text messages or phone calls on the phone to or from Coats
on March 14. The internet search history, however, revealed
that an internet search for Tracey Coats was executed at
502                                           State v. Rexroad

10:12 a.m. earlier that morning; 12 minutes after Lowe had
arrived at defendant’s workplace and 10 minutes prior to
the interview. Lowe then asked defendant, “Did you call him
this morning? Why would you? You’ve already deleted them.
That’s pretty fucking good. So, you already knew what this
was all about to begin with.” Following Lowe’s assertions,
defendant grabbed the phone, but Lowe retrieved it from
defendant’s hands and told him, “I’m seizing your phone as
evidence.” Lowe and defendant struggled back and forth for
the cell phone, as Lowe told defendant he was under arrest.
Defendant regained control of the phone and “twist[ed] the
phone in different directions as if he [was] trying to break
it.” Defendant eventually threw the phone in front of him,
and it landed about seven feet away. Lowe then arrested
defendant for tampering with physical evidence.
         Subsequently, the Eugene Police Department searched
defendant’s phone. Police were unable to extract any data
that was deleted from the phone. They were also unable to
extract data related to when that information was deleted.
The search revealed text messages from defendant’s sister,
Pauline Rexroad, which defendant received the day after
Coats’s arrest for the Mahindra theft. One text contained
a link to a news story about Coats. The story read that on
January 23, Coats was caught stealing a vehicle, and he
was arrested and jailed for the theft the same day. He was
arraigned on January 24. Another text from Pauline five
days later read, “Tracey asked me to ask you to put money
on his books.”
         The search also revealed that on the same morning
that the Mahindra was stolen, defendant texted his brother-in-law, Davenport, a photo of the Mahindra, a link to the
Mahindra website, and the number “1500.” Davenport asked
for “recent pics” and said he was “[d]ifferently [sic] interested
how many miles?” Defendant responded with a photo of the
odometer, which he had received from Coats. After consulting with his wife, however, Davenport ultimately decided
against purchasing the Mahindra.
        At the close of the state’s evidence, defendant moved
for judgment of acquittal on both charges. Regarding the
tampering charge, relying on State v. Austin, 265 Or App
Cite as 

 (2022)                                  503

140, 

 (2014), defendant argued that the state
provided insufficient evidence to prove that he actually
knew that an official proceeding was about to be commenced when he deleted text messages between him and
Coats, as required under ORS 162.295. With respect to the
UUV charge, defendant argued that the state did not provide sufficient evidence to prove two essential elements of
the crime: (1) that defendant exercised sufficient control of
the Mahindra and (2) that defendant had actual knowledge
that the Mahindra was stolen when he offered it for sale
to Davenport. The trial court denied both motions, and the
jury found defendant guilty of both charges. This appeal
followed, and defendant largely reiterates the arguments
made before the trial court. We begin with the tampering
charge.
         ORS 162.295 provides, in relevant part:
       “(1) A person commits the crime of tampering with
   physical evidence if, with intent that it be used, introduced,
   rejected or unavailable in an official proceeding which is
   then pending or to the knowledge of such person is about to
   be instituted, the person:
      “(a) Destroys, mutilates, alters, conceals or removes
   physical evidence impairing its verity or availability[.]”
          “Physical evidence” means “any article, object,
record, document or other evidence of physical substance.”
ORS 162.225(3). For purposes of ORS 162.295, “[a] ‘belief’
about a proceeding that ‘might’ occur is not the same as
‘knowledge’ of an actual proceeding that is ‘about to be instituted.’ ” Austin, 

. However, evidence that
a defendant knew of an arrest can be sufficient to constitute
knowledge of an upcoming proceeding. State v. Jacobs, 

, 

 (2016).
         Before we apply those principles, we begin by clarifying the point of dispute as to the tampering charge. The
state is not alleging that defendant’s throwing of the phone
constituted tampering. Rather, the state is solely alleging
that defendant’s deletion of text messages between himself
and Coats is the basis for the charge. Further, the state
confines its argument to actions taken by defendant on
March 14, when law enforcement came to his workplace to
504                                         State v. Rexroad

interview him. The question on appeal, therefore, is whether,
in the light most favorable to the state, there was evidence,
or reasonable, nonspeculative inferences, that defendant
(1) deleted text messages on that day and (2) did so with the
intent that the text messages be unavailable in an official
proceeding that defendant knew to be pending or about to
be instituted. Viewing the evidence in the light most favorable to the state, there was enough.
         Detectives arrived at defendant’s workplace roughly
10 to 12 minutes before they were able to speak with him,
and evidence suggests defendant was aware of their presence. A detective observed defendant manipulating his
phone before he met with the officers. When Lowe checked
the phone’s search bar, which showed recent searches made
on the phone, Lowe learned that a search for “Tracey Coats”
had been made at 10:12 a.m.—shortly after when the detectives first arrived at defendant’s work around 10:00 a.m.
Texts between defendant and Coats were not on the phone.
However, other relevant text threads from the same period of
time had not been deleted. Particularly, the thread between
defendant and his brother-in-law, the thread between defendant and Coats sent from Coats’s girlfriend’s phone, and
the thread between defendant and his sister had not been
deleted. Although those facts are certainly not conclusive,
a reasonable factfinder could infer that defendant deleted
text messages between himself and Coats in the minutes
between when the officers arrived, and when they spoke
with him.
         As to defendant’s knowledge of a pending proceeding, in Jacobs, testimony that the defendant knew he was
under arrest was sufficient to infer he had knowledge of his
own upcoming proceeding when he destroyed evidence. 

. While the official proceeding in question here
was not defendant’s own, it was Coats’s, that is a distinction
without a difference. In State v. Martine, the defendant was
convicted of attempted tampering with physical evidence
because he attempted to destroy what he believed was physical evidence related to his friend’s upcoming proceeding;
knowledge of someone else’s upcoming proceeding may be
sufficient to support a charge of tampering with physical
evidence. 

, 

 (2016).
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 (2022)                                  505

         A reasonable juror could infer that defendant had
knowledge of Coats’s upcoming proceeding because he
knew Coats was arrested, jailed, and needed money for his
“books.” On January 23, 2018, Coats was arrested for theft
of a vehicle, and he was arraigned on January 24. Also, on
January 24, defendant received a text message from his
sister, containing a link to a news story regarding Coats’s
January 23 arrest. Another text from his sister indicated
that Coats was in jail and wanted money from defendant.
On this record, viewing the evidence in the light most favorable to the state, the trial court did not err in denying the
motion for judgment of acquittal as to the tampering count.
        Turning now to the UUV count, ORS 164.135 (2017)
provides, in relevant part:
      “(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[.]”
(Emphasis added.)
         There is no evidence that defendant ever actually
took, operated, or used the Mahindra. No one disputes
that Coats, not defendant, physically possessed the vehicle.
Defendant’s only contact with the Mahindra was receiving,
along with other people, Coats’s text, and in advertising it
for sale. However, the state argues on appeal that evidence
in the record supports a reasonable inference that Coats
and defendant were operating as a coordinated team—
identifying, stealing, and then selling vehicles. As the
state argues, “[t]he jury could reasonably infer that Coats
and defendant shared control of the vehicle … and that
defendant thus had the ability to deprive the owner of possession.” We understand the state’s argument on appeal to
be analogous to a type of constructive possession theory of
“control.” As we have explained in other contexts, “[a]ctual
possession requires ‘actual physical control of the property’ ”
whereas, “[c]onstructive possession … is less direct, and
describes a person’s relationship to property found under
the physical control of someone else or of no one at all.” State
v. Sanchez-Anderson, 

, 

, 536
506                                         State v. Rexroad

(2019) (internal citations omitted). Here, the state argues
that control, for purposes of ORS 164.135(1)(a) (2017), can be
shown by, in essence, having “the ability to” control. That
presents a question of statutory construction.
         As with all matters of statutory construction, our
paramount goal is to determine the legislature’s intent.
State v. Gaines, 

, 

 (2009). Our
first step in determining legislative intent is examination
of the text and context of the pertinent statute followed by
consideration of legislative history to the extent it “appears
useful to [our] analysis.” 

          As the parties note, the statute does not provide a
definition of “control.” When the legislature fails to define
a term, we begin with the plain and ordinary meaning.
Central Oregon Landwatch v. Deschutes County, 

, 

 (2016) (noting that if the legislature has not defined a term, we consider dictionary definitions to aid in our understanding of its plain meaning).
Webster’s defines the verb “control” as “4a(1) : to exercise
restraining or directing influence over : regulate, curb <control one’s anger> <controlling her interest in the enterprise>
(2) : to have power over : rule <a single company controls
the industry>.” Webster’s Third New Int’l Dictionary 496
(unabridged ed 2002) (emphasis and boldface in Webster’s).
         We have previously interpreted “control” as encompassing actions beyond the terms of “operating” or “riding”
in a vehicle; thus, barring the owner or others from entry
into a car might constitute control, as might the temporary
use of a nonmoving vehicle. State v. Macomber, 

, 

 (1973), rev’d on other grounds, 

, 

 (1974) (holding that alterations a defendant
made to a truck belonging to another was an “exercise of
control” sufficient to satisfy ORS 164.135(1)(a)).
         In contrast, we have said that simply entering a
vehicle or using another’s personal belongings within a vehicle, without depriving the owner of some form of use of his
or her vehicle, does not satisfy the “control” element. State
v. Douthitt, 

, 

 (1978) (holding that a defendant did not exercise “control” over a vehicle when he unlocked a parked car door through an open
Cite as 

 (2022)                             507

window, rifled through the glove box, put on a coat that was
lying in the back seat, and lied to a police officer that the
broken-down vehicle was his friend’s, who had gone for help).
Rather, control requires the manifestation of “an intent to
deprive the rightful possessor of possession or to otherwise
interfere with the rightful possessor’s use of the vehicle, but
… does not cover a naked trespass to the vehicle.” Id.; see
also State v. Howell, 

, 

(2002) (holding that a defendant exercised “control” over a
vehicle because he intended to deprive the rightful owner
of possession as exhibited by breaking into the car and
attempting to steal the title, spare keys, a broken garage
door opener, and a map from the glove box).
          We also consider the legislative history of the statute, to the extent it “appears useful to the court’s analysis,”
as is the case here. Gaines, 

. We find two
provisions of the commentary particularly relevant. First,
with respect to the original enactment of the text at issue,
the Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
§ 134 (July 1970), notes that “[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.” Id. (emphasis in original).
Second, the commentary notes the limitations of the statute:
“The section is meant to include the kinds of acts covered
by ORS 164.670, the existing ‘joy-riding’ statute, as well as
conduct such as manipulating, starting or tampering with
motor vehicles (ORS 164.650, 164.660).” Id.
          The plain meaning of control, read with an eye to
the legislative history of the statute, is in tension with the
state’s “constructive control” argument. We have previously
noted that, at its core, “constructive possession is a way to
broaden … possession beyond actual physical control.” See
State v. Casey, 

, 

 (2009); see also Wayne
R. LaFave, 1 Substantive Criminal Law § 6.1(e), 433 (2d ed
2003) (“Constructive possession, which is simply a doctrine
used to broaden the application of possession-type crimes to
situations in which actual physical control cannot be directly
proved, is often described in terms of dominion and control.”
508                                             State v. Rexroad

(Footnote omitted.)); see also Charles H. Whitebread &
Ronald Stevens, Constructive Possession in Narcotics Cases:
To Have and Have Not, 58 Va L Rev 751, 755 (1972) (noting
that constructive possession expands the scope of possession statutes to include instances where actual possession
cannot be shown but where there is a strong inference that
actual possession did exist at one time).
         We find little support that the legislature intended
ORS 164.135(1)(a) (2017) to be broadened by concepts of constructive possession, or to be untethered from actual physical control. First, the legislature could have used the more
flexible term of “possession” but did not; it used the term
“control.” The statute was specifically enacted by the legislature to replace a “joy-riding” statute which, by its nature,
contemplates actual, exercised, physical control. Finally,
we note the presence of other statutes that would encompass the acts alleged here. ORS 164.095(1) prohibits theft by
receiving:
      “A person commits theft by receiving if the person
   receives, retains, conceals or disposes of property of another
   knowing or having good reason to know that the property
   was the subject of theft.”
The state could have, but did not, charge defendant with violating ORS 164.095(1). We are not called upon to determine
if the state’s “constructive control” theory would support
a charge of aiding and abetting UUV, ORS 161.155, ORS
164.135(1)(a) (2017). Here, the state proceeded solely upon
principal liability.
         The record shows that Coats sent defendant, as well
as multiple other persons, a text message trying to find a
buyer for the stolen vehicle. Defendant never physically possessed the vehicle, or apparently even knew its current location. Defendant was acting as a potential broker, or “fence,”
finding a buyer to introduce to Coats. That is certainly
criminal activity, but it does not demonstrate the “control”
required for principal liability for UUV, ORS 164.135(1)(a)
(2017). The trial court erred in denying defendant’s motion
for judgment of acquittal on the UUV charge.
         Conviction on Count 1 reversed; remanded for
resentencing; otherwise affirmed.