Argued and Submitted April 22, 2014.
Umatilla County Circuit Court. CF110325. Christopher R. Brauer, Judge.
Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Michael R. Salvas, 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.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.[*]
[269 Or.App. 737] SERCOMBE, P. J.
Defendant appeals a judgment of conviction for unauthorized use of a vehicle (UUV). A person commits UUV when he " takes, operates, exercises control over, rides in or otherwise uses another's vehicle * * * without consent of the owner." ORS 164.135(1)(a). At trial, defendant requested jury instructions requiring the jury to find that he knew that he was using the car without the owner's consent, but the trial court instead instructed the jury that it could convict if it found that defendant was criminally negligent with regard to whether he had the consent of the owner. On appeal, defendant argues that that instruction conflicts
with several cases where this court has construed the UUV statute to require that the person using the vehicle knows that he lacks the owner's consent, and he contends that reversal is necessary because that deficiency in the instruction affected the verdict. For the reasons below, we agree, and, accordingly, reverse and remand.
We summarize the competing evidence presented to the jury, keeping in mind that, because defendant has challenged the " trial court's refusal to give a requested jury instruction, we view the facts in the light most favorable to giving that instruction." State v. Wolf, 260 Or.App. 414, 416-17, 317 P.3d 377 (2013); see also State v. Naudain, 254 Or.App. 1, 2, 292 P.3d 623 (2012), rev den, 353 Or. 788, 304 P.3d 467 (2013) (" Because defendant is challenging the trial court's jury instructions, and not the sufficiency of the evidence supporting his conviction, we review all pertinent parts of the record." ). At trial, the state presented evidence that defendant and his brother, Vadim, talked to their neighbor, Goodnow, about purchasing a 1983 Datsun pickup truck. Goodnow testified that defendant asked her if he could take the truck to a car wash in Pendleton to check the engine for an oil leak, and she agreed. Goodnow watched defendant pick his brother up and drive away. Twenty minutes later, when they had not returned, Goodnow called defendant, and he told her that they had taken the truck to a mechanic in Hermiston. Goodnow told defendant to return the truck. When defendant did not return with his brother and did not answer Goodnow's calls, she reported the truck stolen. Defendant later left a voicemail message stating, [269 Or.App. 738] " I'm in Portland. We're bringing the truck back." Goodnow saw defendant and Vadim pull the truck into her driveway several hours later.
Defendant presented evidence that Vadim, not defendant, received permission from Goodnow to borrow the truck and that defendant did not know that he and his brother used the car beyond Goodnow's permission. Vadim testified that he talked to Goodnow about taking the truck to a mechanic, but defendant was not present for the conversation and did not know what Goodnow discussed with Vadim. Defendant and Vadim drove the truck to a mechanic in Hermiston, and they stopped at a gas station on the way. The truck failed to start, so defendant called his girlfriend to have her pick him up at the gas station. The mechanic from Hermiston met Vadim at the station and got the truck running. Vadim left defendant at the gas station, drove to Portland to deliver money to his wife, and picked defendant up from his girlfriend's house in Pendleton on his way back to Goodnow's house.
Defendant requested jury instructions that required the jury to find that he knew he did not have the owner's consent to use the truck:
" Oregon law provides that a person commits the crime of unauthorized use of a vehicle when the person knowingly rides [in] another's vehicle ...