No. 406 May 7, 2025 369
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JACOBE TYLER KORTGE HALSEY,
Defendant-Appellant.
Marion County Circuit Court
23CR12199; A181887
Audrey J. Broyles, Judge.
Submitted April 2, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Timothy C. Downin, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
AOYAGI, P. J.
Remanded for resentencing; otherwise affirmed.
370 State v. Halsey
AOYAGI, P. J.
Defendant was convicted of unauthorized use of
a vehicle (UUV), ORS 164.135, and felon in possession of
a restricted weapon (FIP), ORS 166.270(2). On appeal, he
argues that the trial court erred by (1) denying his motion
for a judgment of acquittal (MJOA) on the UUV count;
(2) applying an incorrect legal standard as to the burden of
proof for UUV; and (3) imposing per diem fees not announced
on the record at sentencing. As described below, we remand
for resentencing based on the error regarding the per diem
fees and otherwise affirm.
MJOA on UUV Count. Defendant was charged with
UUV after he was found in possession of a Toyota Corolla
that was stolen from a parking lot in Eugene and driven to
Salem, with a stop along the way at a gas station in Albany.
Police were able to track the vehicle using the owner’s cellphone, which she had left on the seat while going back into
her workplace to obtain a forgotten item, and they recovered the vehicle from a car wash in Salem approximately
two hours after it was stolen. When they located the vehicle, defendant was standing outside the driver’s side door,
vacuuming the interior, while another person vacuumed
the passenger’s side interior. Defendant’s cellphone was on
the driver’s seat, his backpack was on the back seat, and he
admitted to having discarded the owner’s cellphone case in
the car wash trash can located on the driver’s side of the
vehicle.
In the indictment, defendant was charged with
UUV for having “knowingly operate[d] a vehicle” without
the owner’s consent and with the requisite culpable mental
state for that form of UUV. See ORS 164.135(1)(a) (a person
commits UUV when a person “knowingly takes, operates,
exercises control over or otherwise uses another’s vehicle”
with a specified mental state and without the owner’s consent). Defendant waived jury. In closing argument to the
court, he argued that the state’s evidence was legally insufficient to establish UUV, because there was “no indication
that [he] was operating or even in the vehicle as it moved
northbound on I-5.” Such an argument in a bench trial
Nonprecedential Memo Op: 340 Or App 369 (2025) 371
serves as an MJOA. State v. Hubbell,
371 Or 340, 343, 537
P3d 503 (2023).
On appeal, defendant challenges the denial of his
MJOA, again arguing that the evidence was legally insufficient to prove that he “operated” the stolen vehicle. Although
the evidence was circumstantial, in that none of the state’s
witnesses actually saw defendant driving, and somewhat
thin, particularly given the presence of a second person at
the car wash, we ultimately conclude that it was sufficient
to give rise to a reasonable inference that defendant had
driven the vehicle. See State v. Bivins, 191 Or App 460, 467,
83 P3d 379 (2004) (whether circumstantial evidence is sufficient to support a given inference is a question of law). Not
all reasonable jurors might have been persuaded by the evidence on that point, but we agree with the state that it was
legally sufficient to allow a reasonable inference without
tipping into the realm of impermissible speculation. See
id.
(in assessing the legal sufficiency of the evidence to prove
an element of an offense, we must allow for the factfinder to
make “[r]easonable inferences,” but not to engage in “speculation and guesswork”). “If there is an experience of logical
probability that an ultimate fact will follow a stated narrative or historical fact, then the [factfinder] is given the
opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven
facts.”
Id. (internal quotation marks omitted). That is the
case here, so the trial court did not err in denying defendant’s MJOA on the UUV count.
Burden of Proof for UUV Count. In announcing its
verdict on the UUV count, the trial court identified the central factual issue as being who operated the stolen vehicle,
identified the relevant evidence regarding it being defendant, noted the tight timing and lack of evidence that it was
someone else, and concluded, “So I do find, given all of the
evidence, and the lack of evidence to refute what the state
has produced, that [defendant] is in fact guilty of [UUV].”
Defendant did not object or otherwise preserve any claim of
error. On appeal, however, he contends that the trial court
obviously misapplied the burden of proof, because the burdens of production and persuasion were entirely on the state
372 State v. Halsey
and defendant did not need to “refute” the state’s evidence.
He asks that we reverse his UUV conviction on plain-error
review. See State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000)
(“Generally, an issue not preserved in the trial court will not
be considered on appeal.”); ORAP 5.45(1) (recognizing our
discretion to correct “plain” errors despite nonpreservation).
We reject that argument, because we agree with the
state that the error is not plain. See State v. Vanornum, 354
Or 614, 629, 317 P3d 889 (2013) (“For an error to be plain
error, it must be an error of law, obvious and not reasonably
in dispute, and apparent on the record without requiring the
court to choose among competing inferences.”). In context,
it appears that the court was trying to say that all of the
evidence pointed in a single direction—that defendant had
driven the vehicle for some or all of the trip from Eugene
to Salem—rather than meaning to suggest that defendant
had some obligation to produce contrary evidence. Although
the court’s “refute” phrasing was inartful, in context, we are
unpersuaded that the only inference on this record is that
the court actually misunderstood or misapplied the burden
of proof. Had defendant objected, the court could have clarified what it was trying to say. Because he did not, the record
is susceptible to competing inferences, from which it follows
that the alleged error is not “plain” for purposes of discretionary plain-error review.
Id.
Per Diem Fees. In the judgment, the trial court
included as part of the sentence on the FIP count that
“[d]efendant shall pay any required per diem fees.” The
state concedes that it was error to include that term when
it was not announced on the record at sentencing. See State
v. Barr, 331 Or App 242, 244, 545 P3d 772, rev den,
372 Or
720 (2024) (holding same). We agree and therefore remand
for resentencing.
Remanded for resentencing; otherwise affirmed.
