Argued and Submitted June 24, 2014
C121220CR. Washington County Circuit Court. Donald R. Letourneau, Judge.
Erik M. Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jona J. Maukonen, 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 Tookey, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.[*]
[271 Or.App. 103] HADLOCK, J.
In 2012, defendant rented a U-Haul truck for one night for an in-town move in Arkansas. Twenty-five days later, the truck was found in Oregon, approximately 2,000 miles away. Defendant was charged with, and convicted of, unauthorized use of a vehicle (UUV). ORS 164.135. At trial, defendant offered an exhibit purporting to show that he had paid approximately $4,000 to U-Haul. The trial court excluded the exhibit as not relevant. Defendant appeals, assigning error to the trial court's exclusion of that exhibit. Defendant also assigns errors to the trial court's imposition of restitution in a supplemental judgment. For the reasons explained below, we affirm on defendant's first assignment of error, but vacate the supplemental judgment and remand for further proceedings on restitution.
Except as indicated, the pertinent facts are undisputed. Defendant rented a U-Haul truck on the afternoon of May 9, 2012, in Springdale, Arkansas. U-Haul's records indicate that defendant was going to use the truck for an in-town move and return the truck to the same U-Haul location the following morning. Bettle, a U-Haul manager in Oregon, testified that the truck was " owned specifically by the location in Arkansas. They would only intend to rent it to return back to their * * * own location."
U-Haul employees repeatedly attempted to contact defendant after he did not return the truck on May 10, 2012. U-Haul personnel called defendant three times on May 11, leaving him one voicemail but finding that his voicemail was full during the other two calls. A U-Haul employee left another voicemail on May 14. The record also includes documentation of a May 17 " Equipment Recovery" e-mail from U-Haul to defendant " regarding overdue equipment," and a demand letter
sent via first class mail the same day, and another demand letter from U-Haul sent by certified mail on May 24. On May 28, U-Haul personnel contacted law enforcement to report the truck as stolen. At some point, defendant's agreement with U-Haul was changed from one day to seven days. The record does not reflect why or how that change occurred; nor does the record include any [271 Or.App. 104] indication that defendant contacted U-Haul to request that change to the agreement.
On June 3, 2012, a person described in U-Haul documentation as a " good Samaritan" called the company and reported having seen the truck in Portland. Bettle went to the truck's reported location and identified the truck as the same one that defendant had rented; he then contacted the Washington County Sheriff's Office. Deputy Elenes, who was dispatched in response, contacted defendant and told him that he was responding to a report that the truck had been stolen. Elenes asked for defendant's side of the story, which Elenes described at trial:
" [Defendant] told me that he knew he had the U-Haul longer than he was supposed to. He said he knew it was going to cost him a lot due to the length of time he had it and * * * the mileage he's put on it. He also told me that he initially rented for a local move and then ended up losing his place where he was staying and coming to Oregon at that point because he had family here."
Defendant also told Elenes that he was helping a friend move and that he had planned to return the truck when he was done. When Bettle looked inside the truck later that day, he said it " seemed as if [defendant and others had] been living out of the vehicle." Bettle testified that the truck held numerous personal belongings and a used " camp latrine."
Defendant was arrested and charged with one count of UUV. ORS 164.135 defines that crime and provides, in pertinent part:
" (1) A person commits the crime of unauthorized use of a vehicle when:
" * * * *
" (c) Having custody of a vehicle * * * pursuant to an agreement with the owner thereof whereby such vehicle * * * is to be returned to the owner at a specified time, the person knowingly retains or withholds possession thereof without consent of the owner for so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement."
[271 Or.App. 105] The most contentious issue at trial was whether defendant's retention of the truck constituted a " gross deviation" from his agreement with U-Haul. The state focused its case on the undisputed fact that defendant had kept the truck for over three weeks, after renting it for only one day, and on U-Haul's repeated attempts to contact defendant when he failed to return the truck on May 10, 2012. Defendant argued that his agreement with U-Haul was " fluid," pointing to two provisions in the agreement. The first of those provisions stated: " Failure to return the equipment by the Rental Due time may result in additional charges." The second provision upon which defendant relied explained what would happen if the truck was not returned to the agreed upon U-Haul location:
" I understand that this equipment must be returned to the same U-Haul location where it was rented. I understand that the minimum rental charge for equipment returned to a different location is twice the amount of the current One Way rate from this U-Haul location to the actual drop-off location."
Defendant argued that his retention of the truck was not a " gross deviation" from the agreement because the quoted provisions contemplated that the truck might be returned late or to a different location.
In promoting those theories of the case, both the state and defendant elicited testimony from Bettle about U-Haul's contracting procedures generally and U-Haul's agreement with defendant specifically. Bettle testified that U-Haul rental agreements can be changed if the customer asks to extend the rental. However, Bettle explained, customers are ...