Argued November 10, 2014.
Multnomah County Circuit Court 121134898. John A. Wittmayer, Judge.
Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael S. Shin, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
John A. Wittmayer, Judge. Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[269 Or.App. 239] TOOKEY, J.
This case involves " jiggle keys"  and a stolen truck. After being pulled over in a stolen pickup truck, defendant was arrested and charged with unauthorized use of a vehicle (UUV), ORS 164.135 (Count 1), possession of a stolen vehicle (PSV), ORS 819.300 (Count 2), and possession of methamphetamine, ORS 475.894 (Count 3). The trial court found defendant guilty of all three charges and, because Count 2 merged with Count 1, defendant was convicted of Count 1, UUV, and Count 3, possession of methamphetamine. On appeal, defendant raises two issues relating to the UUV and PSV charges. First, defendant assigns error to the trial court's denial of his motion for judgment of acquittal on both charges, arguing that there was insufficient evidence to prove that he knew that the truck was stolen. Second, defendant assigns error to the trial court's imposition of restitution in the amount of $1,800 for damage to the truck's hood.
We conclude that the state failed to present sufficient evidence that defendant knew that the truck was stolen, and therefore the trial court erred in denying defendant's motion for judgment of acquittal on both the UUV and PSV charges. Accordingly, we do not reach the issue of whether restitution was warranted, and we reverse the judgment of the trial court as to Counts 1 and 2, remand for resentencing, and otherwise affirm.
When reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable [269 Or.App. 240] 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, 873 P.2d 316 (1994).
During a residential burglary in Salem, the keys to the victim's Chevrolet Silverado pickup truck, along with the truck itself and other property, were stolen. According to the victim, a family member named Randy was arrested for the burglary and theft of the truck. Approximately 10 days after the burglary, defendant, whom the victim did not know, was seen driving the truck in Multnomah County. Police Officer Dick stopped and arrested defendant. When Dick asked defendant who the truck belonged to, defendant stated that he " got it from a guy named Dave," a " friend of a friend" whom he had met " about a week and a half to two weeks" prior. He stated that, as far as he knew, the truck belonged to Dave, and Dave had been driving the truck " as long as he had known him." Defendant did not know Dave's last name, his telephone number, or where he
lived, except that he was " pretty transient," and defendant thought that Dave was " pretty much" living in another truck of his and " kind of going between two trailers in a trailer park" on Nile Street, in Salem. Dick asked defendant whether he thought it was " odd" that Dave was transient, and living in his truck, while the truck that defendant was driving when he was stopped was " pretty nice." Defendant responded that he " had heard that Dave was going through a divorce, and his wife was pretty much taking him for everything [he was] worth," and that was why he was living in his truck.
Defendant told Dick that he had borrowed the truck from Dave in Salem the previous night, so that he could help a woman in Portland buy an all-terrain vehicle (ATV). He stated that he had arranged to go to Portland, get a trailer from the woman, and then meet the seller of the ATV in Longview. He stated that he had met the ATV seller in Longview at " sometime around" 2:00 a.m. or 3:30 a.m. that morning, returned to Portland with the ATV, and dropped the trailer and ATV back off at the woman's ...