Submitted November 25, 2014.
13CR0529. Coos County Circuit Court. Michael J. Gillespie, Judge.
Peter Gartlan, Chief Defender, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Sarah M. Villanueva, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Flynn, Judge, and De Muniz, Senior Judge.
[269 Or.App. 894] FLYNN, J.
Defendant was convicted of, among other crimes, one count of unauthorized use of a vehicle (UUV), ORS 164.135(1)(a). He assigns error to the trial court's refusal to instruct the jury on the statutory defense of " honest claim of right," which is set out in ORS 164.035(1). That statute specifies, " In a prosecution for theft it is a defense that the defendant acted under an honest claim of right[.]" Defendant argues that he was entitled to the instruction because UUV is " essentially, the theft of a vehicle." The state responds that defendant did not present evidence to support giving the instruction and, in any event, that the instruction was not appropriate, because " honest claim of right" is not a defense to UUV. We conclude that a prosecution for UUV is not a " prosecution for theft" for which the defense described in ORS 164.035(1) is available. Accordingly, we affirm.
As we explained in State v. Oneill, 256 Or.App. 537, 539-40, 303 P.3d 944 (2013), a defendant is entitled to an instruction on a theory of defense " if there is any evidence from which jurors could infer that the required elements of that defense are present and the proposed instruction correctly states
the law." (Citations omitted.) We review a trial court's failure to give a requested instruction for legal error. State v. Marsh, 186 Or.App. 612, 614, 64 P.3d 1141, rev den, 335 Or. 655, 75 P.3d 899 (2003) (citing State v. Moore, 324 Or. 396, 427, 927 P.2d 1073 (1996)). We view the evidence supporting the instruction in the light most favorable to the party who requested it, id., and state the facts accordingly.
At 3:15 a.m. on April 22, 2013, a Myrtle Point police officer saw defendant driving a Jeep that reportedly had been stolen from the front of a house in the nearby town of North Bend approximately 15 minutes earlier. Officers pursued defendant and, when they ultimately caught defendant and searched the Jeep, they found fishing gear that appeared to belong to defendant. At trial, one of the officers described his side of a conversation with defendant:
[269 Or.App. 895] " [DEFENSE COUNSEL]: Did you ask my client how he obtained this vehicle?
" [OFFICER]: I did.
" [DEFENSE COUNSEL]: And, did he give you a response to that?
" [OFFICER]: Yes.
" [DEFENSE COUNSEL]: Did you ask him how recently he had obtained the vehicle--or, when he had obtained it?
" [OFFICER]: Hmm, yes.
" [DEFENSE COUNSEL]: And did he respond to that?
" [OFFICER]: Yes.
" [DEFENSE COUNSEL]: And did--did you ask him if it was--how--did you ask him if ...