State v. Smith

206                  February 26, 2025               No. 141

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                    STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  JACOB ROBERT SMITH,
                    Defendant-Appellant.
               Clackamas County Circuit Court
                    21CR03206; A178981

   Heather Karabeika, Judge.
   Argued and submitted February 2, 2024.
   Carla Edmondson, Deputy Public Defender, argued the
cause for appellant. Also on the briefs 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 Shorr, Presiding Judge, Pagán, Judge, and Mooney,
Senior Judge.
   MOONEY, S. J.
   Reversed.
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         MOONEY, S. J.
         Defendant appeals a judgment of conviction for the
unauthorized use of a vehicle (UUV), ORS 164.135. After a
bench trial, the court acquitted defendant of felon in possession of a firearm (Count 1) and found him guilty of the
unauthorized use of a vehicle (Count 2) and possession of a
stolen vehicle, ORS 819.300 (PSV) (Count 3). Count 3 was
merged with Count 2, and the court entered a judgment of
conviction solely on Count 2, UUV. Defendant assigns error
to the trial court finding him “guilty of PSV” and “guilty of
UUV.”1 He argues that there was insufficient evidence to
establish the required culpable mental state for UUV and
for PSV, and that the state thus failed to meet its burden of
proof on each of those charges. We agree and reverse.
                I. STANDARD OF REVIEW
         We review “the sufficiency of the evidence in a criminal case following a conviction 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, 

, 

 (1994), cert den, 

 (1995). The question is not “whether we believe that
defendant is guilty beyond a reasonable doubt, but whether
the evidence is sufficient for the [factfinder] to so find.” Id.
To the extent that the parties disagree about the required
mental state for UUV and/or PSV, that is a question of statutory construction which we review for legal error. State v.
McQueen, 

, 

 (2020).
                          II. FACTS
         We state the facts in accordance with our standard
of review. Officer Jason Pohl responded to a report of a suspicious person seen “working out” and “going in and out of
a car” parked in a shopping center parking lot. When Pohl
arrived, he saw defendant with his knees on the driver’s

     1
       When a defendant waives jury and proceeds with a bench trial, “a challenge
to the legal sufficiency of the state’s evidence during closing argument can be ‘the
equivalent of a motion for judgment of acquittal’ for preservation purposes.” State
v. Giron-Cortez, 

, 733 n 3, 

 (2024). That is what defendant
did here.
208                                                            State v. Smith

seat and “his feet hanging out of the car.” Pohl thought that
it looked like defendant was “reaching for something in the
middle of the vehicle.” The vehicle had no license plates.2 It
is unclear whether there was a temporary tag taped to the
back window. Pohl asked defendant if defendant was okay.
Defendant responded that he had been waiting for a friend
to work out with but that the friend “didn’t show,” and that
he was continuing to wait for the friend to go a restaurant.
Defendant told Pohl that he had just been released from
jail two days earlier. Pohl questioned defendant about who
owned the vehicle:
     “DEFENDANT: I don’t know who the—the registered
   owner is, but it’s my buddy Chris’.
         “OFFICER [ ]: Chris—Chris what?
         “DEFENDANT: I don’t know his last name.
         “OFFICER [ ]: What? Come on, man. Help me out here.
      “DEFENDANT: He doesn’t have his last name on …
   Instagram or Facebook, or whatever. …
      “OFFICER [ ]: Okay. Cool. So this—this isn’t your car,
   but you’re in it?
         “…
         “DEFENDANT: Yeah.
         “OFFICER [ ]: Does that make sense?
         “DEFENDANT: Yeah, it makes sense, yeah.
         “…
      “DEFENDANT: Yeah. I mean, I’m in it, but … I have
   permission to have the vehicle is what I’m saying.
         “OFFICER [ ]: Who gave you permission for that?
     “DEFENDANT: The guy who owns it or bought it or
   whatever[.]”

   2
       Pohl testified that a vehicle without plates can mean
       “a lot of different things. It could be that the vehicle has—hasn’t been
   registered. The plates have been stolen.
       “It can be the vehicle is stolen, but that’s not—that’s not too common nowadays because nowadays, people just steal new plates and put them on the
   cars to make them look less suspicious, so. It can be a lot of different things.”
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Pohl ran the Vehicle Identification Number (VIN), determined that the vehicle had been reported stolen the week
before, and then placed defendant in handcuffs.
         Pohl found the original car keys on the passenger
seat; an unloaded firearm in the center console; a check
made out to defendant; checks made out to a third party;
drug paraphernalia; and defendant’s mail and prison discharge papers. Defendant explained that he had been riding
as a passenger and that Chris had been driving. Chris left
defendant in the vehicle with the keys and instructions to
wait for him (meaning Chris) to return so they could exercise together. Chris had not returned “after a long time,”
and defendant began to exercise on his own. Defendant
acknowledged that it was possible that Pohl may have seen
him driving around the parking lot, but defendant maintained that he had neither stolen the vehicle nor driven it to
the parking lot. Defendant maintained that he had permission to be in the vehicle.
         There is no dispute that the vehicle was stolen by
some other person while defendant was incarcerated. It is
likewise undisputed that when Pohl found defendant in
the vehicle, he observed no damage that suggested that the
vehicle had been stolen. In other words, the windows, doors,
ignition, and dashboard appeared to be undamaged and
there was no evidence that the vehicle was damaged.
             III.   TRIAL COURT’S VERDICT
         Following the bench trial, the trial court announced
its verdict as follows:
       “Counts 2 and 3, [defendant], I am going to find you
   guilty of [UUV and PSV]. I do believe that the circumstantial and direct evidence is that you were in possession of
   that car, that it was stolen, that you—your behavior was
   obviously squirrely.
      “Your comments were, frankly, you know, incriminating.
   Your conduct was incriminating. Your items are throughout the vehicle, and clearly this vehicle had not been taken
   by you but taken by somebody else. The nonexistent Chris
   person, of course, does not exist and I think we all know
   that.”
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                             IV. ANALYSIS
A. Sufficiency of the Evidence to Support Conviction for
   UUV
         As noted, defendant contests the sufficiency of the
evidence to support his conviction for UUV. A person commits the crime of UUV when the person (1) knowingly exercises control over or uses another’s vehicle, (2) “is aware of
and consciously disregards a substantial and unjustifiable
risk that” the vehicle owner does not consent to that control
or use, and (3) the owner did not consent to the control or use.
ORS 164.135(1). At issue is the sufficiency of the evidence to
support the second element. Historically, ORS 164.135 did
not assign a culpable mental state for UUV, and we concluded
that “the state was required to prove the culpable mental
state specified in the indictment.” State v. Fitch, 

, 

 (2024). Our opinions, thus, applied a
knowing mental state when the charging instrument alleged
actual knowledge. See e.g., State v. Bell, 

,

 (2008) (explaining that the state was required
to prove that the defendant actually knew the car was stolen
because the state charged him with UUV with a knowing
mental state); State v. Shipe, 

, 

 (2014) (applying a knowing mental state where UUV
was charged with a knowing mental state).
         In 2019, the legislature amended the UUV statute
“to specify that someone is guilty of UUV when that person
is ‘aware of and consciously disregards a substantial and
unjustifiable risk’ that the owner did not consent to the person’s use of the vehicle, ORS 164.135(1)(a)(B), establishing
recklessness as the culpable mental state for the offense[,]
ORS 161.085(9).”3 Fitch, 

; see also State v.
Huerta-Contreras, 

, 

 (2024)
(explaining that the 2019 amendment “add[ed] a reckless
culpable mental state as to the owner’s consent to use the
   3
       ORS 161.085(9) provides:
       “ ‘Recklessly,’ when used with respect to a result or to a circumstance
   described by a statute defining an offense, means that a person is aware
   of and consciously disregards a substantial and unjustifiable risk that the
   result will occur or that the circumstance exists. The risk must be of such
   nature and degree that disregard thereof constitutes a gross deviation from
   the standard of care that a reasonable person would observe in the situation.”
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vehicle”). Accordingly, we must assess whether the evidence
is sufficient to support a finding that defendant was aware
of, but consciously disregarded, a substantial and unjustifiable risk that he did not have the permission of the vehicle’s
owner to use it.
         We conclude that it is not. Proof of defendant’s
awareness may be by direct evidence, circumstantial evidence, or by reasonable inferences. State v. Connelly, 

, 

 (2019). The state may rely on
a reasonable inference so long as a rational factfinder can
be convinced beyond a reasonable doubt that the inference
follows from the underlying facts. Bell, 

.
“[S]peculation and guesswork are not” admissible as evidence of anything. State v. Bivins, 

, 

 (2004). A defendant’s awareness cannot be established through the “ ‘stacking of inferences to the point of
speculation’ ” or where “ ‘the logic is too strained[.]’ ” State
v. Peirce, 

, 

 (2019) (quoting
Bivins, 

). For example, “evidence of
general wrongdoing or suspicious behavior, standing alone,
will ordinarily not be sufficient to permit a reasonable inference” about a defendant’s knowledge. State v. Witt, 

, 

 (2021).
         Our recent decisions in Fitch and Huerta-Contreras
illustrate where rational inferences cross the line to impermissible speculation in the context of assessing whether the
evidence is sufficient to support an inference that a defendant was aware of, but consciously disregarded, a substantial and unjustifiable risk that an owner did not consent to
a vehicle’s use. Those decisions demonstrate that the evidence here is not sufficient to support a nonspeculative finding that defendant was aware of, but disregarded, a substantial and unjustifiable risk that he lacked the consent of
the owner to use the vehicle. In particular, contrary to the
trial court’s conclusion, they demonstrate that suspicious
circumstances—such as “squirreliness” or lying—standing
alone do not allow for a nonspeculative inference that a
defendant was, in fact, aware of a substantial and unjustifiable risk that they did not have the owner’s permission to
use the vehicle.
212                                                   State v. Smith

           We affirmed a conviction for UUV in Fitch where the
     “[d]efendant’s dubious story about the purchase, the lack
     of a bill of sale or title for the car, and possession of other
     documents resembling various registrations in names that
     were not defendant’s name were sufficient evidence that he
     disregarded the risk that the owner did not consent, which
     was a gross deviation from the standard of care that a reasonable person would observe in a similar situation.”
Fitch, 

. But we reversed a conviction
for UUV in Huerta-Contreras where
     “[t]he officer witnessed no suspicious conduct beyond defendant sitting late at night in the driver’s seat of a car that
     had been reported stolen earlier that day. The type of inference the officer needed to make to conclude that defendant
     possessed the requisite mental state amounted to a mere
     hunch[.]”
Huerta-Contreras, 

. Huerta-Contreras
concerned the question of probable cause in the context of
the denial of a motion to suppress. 

. The ultimate
legal question was, thus, different. But the type of inference
required here is no less a hunch than in Huerta-Contreras.
The fact that defendant gave an arguably implausible story
for how he came to be in possession of the vehicle, and
the fact that the vehicle lacked license plates, might have
inspired a hunch about whether defendant had the owner’s
consent to be there. But without something more, such as
the other suspicious registration documents that were present in Fitch, it was not enough to support the required mental state for UUV.
B.    Sufficiency of Evidence to Support Conviction for PSV
        Defendant also contests the sufficiency of the
evidence to support his conviction for PSV under ORS
819.300(1). ORS 819.300(1) provides that:
     “[a] person commits the offense of possession of a stolen
     vehicle if the person possesses any vehicle which the person
     knows or has reason to believe has been stolen.”
The phrase “reason to believe” is not defined by ORS 819.300.
Defendant argues that the culpable mental state required
for PSV is akin to criminal recklessness—“something less
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than actual knowledge but something more than a hunch.”
The state argues that the mental state for PSV is “a low bar,
similar to the culpable mental state of criminal negligence.”
The parties devoted significant portions of their briefs to the
construction of the statutory phrase “reason to believe,” 4 but
we do not understand there to be a genuine disagreement as
to the required mental state.
         Defendant refers to the contemporary Webster’s
Third New International Dictionary for definitions of the
words “reason” and “believe.” The state refers instead to
dictionary definitions in place in 1927, when the phrase
“reason to believe” was first written into the PSV statute.
We note that the plain meaning of “reason” and “believe”
have not meaningfully changed over the last one hundred
years and that both parties effectively present the same
definition for “reason to believe.” As defendant argues, there
must be evidence of “facts or circumstances from which one
would reach the opinion—have reason to believe—that the
vehicle was stolen.” As the state argues, there must be “evidence that a person was aware of a circumstance that would
induce a belief that the vehicle was stolen.” Without belaboring the point, we discern no practical difference between the
two. Each party correctly argues that the phrase “reason to
believe”—on its face—requires evidence that the defendant
was subjectively aware of facts that would give a rational
person cause to think that the vehicle was actually stolen.
         As to the sufficiency of the evidence, the evidence
in the record does not allow for a reasonable inference that
defendant was aware of circumstances that gave him reason to believe that the vehicle was stolen. While it might be
inferable that defendant was lying about how he came into
possession of the vehicle, the inference of falsity, standing
alone, does not allow for a nonspeculative affirmative inference that the circumstances in which defendant came into
possession of the vehicle were ones that put him on notice
that it was stolen. And apart from defendant’s own story
about how he obtained the vehicle, the record contains no
evidence of the circumstances in which defendant obtained

    4
      The parties engage in statutory construction using the familiar methodology set forth in State v. Gaines, 

, 

 (2009).
214                                           State v. Smith

the vehicle or of other circumstances that would support a
finding that defendant had reason to believe that the vehicle
was stolen.
        Reversed.