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State v. Shipe

Court of Appeals of Oregon

July 23, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
JERROL EDWIN SHIPE, Defendant-Appellant

Submitted May 27, 2014

Washington County Circuit Court. C120721CR. Andrew Erwin, Judge.

Peter Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Mooney, Judge pro tempore.

OPINION

[264 Or.App. 392] HADLOCK, J.

Charges were filed against defendant after a police officer found him sitting in a stolen truck that contained, among other things, baggies with drug residue. Defendant's case was tried to the court, which convicted defendant of unauthorized use of a vehicle (UUV), ORS 164.135,[1] and unlawful possession of methamphetamine, ORS 475.894. On appeal, defendant challenges only the UUV conviction, arguing that the trial court erred when it denied his motion for judgment of acquittal on that charge. According to defendant, the state failed to prove that he " knowingly" used the truck without the owner's consent, as charged in the information. We agree and, therefore, reverse the UUV conviction.

When reviewing an order denying a motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational factfinder could have found that the essential elements of the crime were proven beyond a reasonable doubt. State v. Cervantes, 319 Or. 121, 125,

Page 335

873 P.2d 316 (1994). We present the facts consistently with that standard.

On March 27, 2012, a pickup truck was reported missing by its owner. Defendant was incarcerated at the time. Six days later, Officer Neumeister, responding to a call in the parking lot of an apartment complex, found defendant sitting in the driver's seat of the stolen truck, with the engine running and the lights on, listening to music and " moving his head back and forth, and kind of making loud * * * high pitched squealing noises." Defendant told Neumeister that he lived at the apartment complex and had driven the truck there approximately 15 minutes earlier. Neumeister arrested and searched defendant, finding baggies imprinted with an " iron cross" logo and containing methamphetamine.

[264 Or.App. 393] The state charged defendant with four crimes, including UUV and unlawful possession of methamphetamine.[2] Regarding the UUV charge, the information alleged that defendant " did unlawfully and knowingly take, operate, exercise control over, ride in and otherwise use" the truck " without the consent of the owner."

The case was tried to the court. Neumeister testified that, when he had asked defendant about the truck, defendant said that he had gotten it from " a friend named Richey," who lived near a school in Tualatin. Neumeister also testified that he assumed there were keys in the ignition, but he " did not necessarily see the keys in the ignition." In the cab of the truck, officers found various items, including baggies with drug residue that were imprinted with the same " iron cross" logo as those found on defendant, clothing, bolt cutters, keys, documents with other people's names on them, and a locked case that had the words " crime committing kit" painted on it. Police later discovered that much of the property found in the truck had been stolen.

The truck's owner testified that, when the truck was returned to him, it contained several items that did not belong to him, including blankets, iPods, remnants of game systems, and a laptop. All of the owner's property that had been in the truck was missing, including his registration and insurance card, and there was considerable damage to the exterior and interior of the truck. The ignition was in working order, but the key that defendant had used to ...


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