State v. Ormsby

No. 598                July 2, 2025                    641

   This is a nonprecedential memorandum opinion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.
                DAVID MURRAY ORMSBY,
                   Defendant-Appellant.
              Clackamas County Circuit Court
                   23CR23178; A182585

  Jeffrey S. Jones, Judge.
  Submitted May 13, 2025.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public
Defender, Oregon Public Defense Commission, filed the brief
for appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
  PAGÁN, J.
  Affirmed.
642                                                          State v. Ormsby

           PAGÁN, J.
         Defendant appeals from a judgment of conviction
entered for possession of a stolen vehicle, ORS 819.300, following a bench trial. 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.” ORS 819.300. On appeal, defendant contends that
the evidence was insufficient to prove that he “possess[ed]”
the vehicle. The state responds that defendant’s argument
was not preserved, and that the evidence was sufficient to
prove that defendant possessed the vehicle. As we discuss
below, assuming without deciding that defendant’s assignment of error was preserved,1 there was sufficient evidence
from which a reasonable factfinder could find that defendant
possessed the stolen vehicle. We thus affirm.
         We review the sufficiency of the state’s evidence to
determine whether a rational factfinder could find the elements of the offense beyond a reasonable doubt, viewing the
evidence in the light most favorable to the state. State v.
Butterfield, 

, 

 (2024). As relevant here, both parties presented to the trial court a similar understanding of the element of possession to mean having “physical custody or … exercis[ing] dominion or control
over property,” using Uniform Criminal Jury Instruction
1045.2 At defendant’s trial, the arresting officer testified
that defendant was in the vehicle for approximately five
minutes with the doors closed, and that he exited the car
from the driver’s seat. When he was arrested, his backpack
was found on the passenger seat. And, during the arrest,
     1
       Generally speaking, a defendant’s challenge to the legal sufficiency of the
evidence in closing argument can act to preserve an appeal from a motion for
judgment of acquittal. See State v. Gonzalez, 

, 

(2003). However, even in such instances, such a challenge must still be clear. See
State v. Atwood, 

, 

 (2024) (finding that a closing
argument that suggests the factfinder not be persuaded by the evidence does not
preserve a sufficiency challenge for appeal). Because we find that even if the issue
was preserved, we would still affirm, we do not address the issue in this opinion.
     2
       In its answering brief, the state argues that the definition of “possess[ion]”
for purposes of possession of a stolen vehicle should be construed to include “occupy[ing]” the vehicle because a vehicle is different than a controlled substance or
a weapon. Because we conclude that the evidence was sufficient regardless of
whether the trial court used the state’s suggested interpretation, we do not reach
that issue.
Nonprecedential Memo Op: 

 (2025)          643

the officer found three or four keyrings, each with approximately five to ten keys on them, in his jacket pockets and
his front pants pockets. Some of the keys were shaved down.
The officer testified that shaved keys are commonly used to
enter and start different models of cars. She also testified
that when she arrested defendant, he told her that he was
searching the vehicle for cans to sell, that he was trying to
determine how to open the trunk, and that he found the
shaved keys inside the car.
         Defendant argues that the evidence was insufficient to prove that he possessed the vehicle because there
was no evidence that the shaved keys fit the car door lock
or ignition, or that defendant was otherwise able to operate
the car. But, a rational factfinder could find that defendant
was in the stolen vehicle for a significant amount of time,
and could infer that defendant was looking under the dashboard trying to start the vehicle with the shaved keys in
his possession. Taking all reasonable inferences in the light
most favorable to the state, a rational factfinder could find
that defendant possessed the vehicle because he had physical dominion or control over it.
        Affirmed.