Argued and submitted on July 31, 2013.
Multnomah County Circuit Court 100330988 Leslie M. Roberts, Judge.
David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Haselton, Chief Judge, and Duncan, Judge.
HASELTON, C. J.
After a jury trial, defendant was convicted of unauthorized use of a vehicle (UUV), ORS 164.135; second-degree criminal trespass, ORS 164.245; and third-degree criminal mischief, ORS 164.345, based on an incident in which he removed a truck and trailer from a locked lot where he had consigned the vehicles for sale. Defendant appeals, assigning error to the trial court's allowance of the state's in limine motion to exclude a police officer's statement to defendant that he could retrieve those vehicles.The trial court concluded that the statement was not relevant. We conclude that the statement was relevant to defendant's state of mind with respect to the UUV charges and, thus, the trial court erred in excluding it. Accordingly, we reverse and remand defendant's conviction for UUV on Count 1 and Count 2, remand for resentencing, and otherwise affirm.
We review determinations of relevance for errors of law. State v. Titus, 328 Or 475, 481, 982 P.2d 1133 (1999). The assignment of error in this case pertains to the relevance of certain excluded evidence. Accordingly, we describe the evidence that was introduced at trial, without regard to whether the evidence was favorable to the defense or the state.
Defendant is a car-hauling long-haul trucker. On multiple occasions, defendant had taken his car-hauling truck and trailer for maintenance and repairs to Pacific Coast Truck & Trailer, LLC (Pacific Coast), a repair business and parts seller located in Portland. In August 2006, defendant consigned a 1992 truck and car-hauling trailer at Pacific Coast. Pacific Coast performed mechanical work on the truck to prepare it for sale. The truck and trailer sat on a Pacific Coast lot for over two years and never sold.
In October 2008, defendant and two of his friends went to Pacific Coast to retrieve the truck and trailer during a time when the business was open. The vehicles were parked on a fenced lot behind a locked gate near the Pacific Coast garage and office. According to defendant, he intended to provide the truck and trailer to one of the two men who had accompanied him. Pacific Coast owner Gary Clark informed defendant that he would not be allowed to remove the vehicles unless and until defendant paid for work that had been completed. Defendant responded that he had not authorized any work, and he did not believe that he owed any money. Ultimately, defendant left without the truck and trailer.
After that encounter, Clark contacted an agent to file a mechanic's lien. Clark also towed an old, inoperable Studebaker station wagon into a position blocking the truck and trailer against the fence so that they could not be removed. Clark then took photographs of all of the vehicles and the locked gate.
At trial, the state successfully sought to exclude evidence that, after defendant and Clark disagreed about defendant taking the vehicles from the lot, defendant purportedly contacted the Portland Police Department and inquired about whether he was entitled to retrieve the vehicles. According to defendant, a police officer informed him that he could lawfully reclaim his truck and trailer from Pacific Coast by "simply driving them off" of the lot. Evidence of that exchange was excluded, and the propriety of that exclusion is the subject of this appeal.
On the evening of October 31, while the business was closed, defendant returned to Pacific Coast, again with two other men. The men removed the lock from the gate, entered the lot, moved the Studebaker, and took the truck and trailer. Defendant parked the vehicles in Toledo, Washington, where a Portland police officer later discovered them in January 2010. In March, the state charged defendant with, inter alia, two counts of UUV pertaining to, respectively, the truck and the trailer, second-degree criminal trespass, and third-degree criminal mischief. With respect to the UUV count pertaining to the truck, the state alleged in the indictment, "The said Defendant, on or about October 31, 2008, * * * did unlawfully and knowingly take, operate, exercise control over and ride in a vehicle, to-wit: a 1992 Peterbuilt [sic] truck, without the consent of the owner Pacific Coast Truck & Trailer, LLC[.]" The indictment contained an identical count with respect to the trailer.
After he was indicted, defendant filed a civil suit against Pacific Coast for conversion of the truck and trailer. In his complaint, defendant alleged that,
"[o]n or about October 31, 2008, [defendant] was advised by the Portland police that he could lawfully reclaim his truck and trailer from [Pacific Coast] by simply driving them off [Pacific Coast's] property. [Defendant] did so that evening."
Before the criminal trial, the state moved for a ruling that a portion of defendant's allegation in his conversion complaint (viz., "[Defendant] did so that evening.") was admissible to establish that he in fact took the truck and trailer from Pacific Coast's property. The state argued that the remainder of the statement (the part that was not an admission) was inadmissible hearsay that must be redacted. Defendant responded that the admission would impermissibly be ...