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State v. West

Court of Appeals of Oregon

December 20, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
AARON DAVID WEST, Defendant-Appellant.

          Submitted August 23, 2017

         Coos County Circuit Court 15CR0963; Richard L. Barron, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Andrew M. Lavin, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction on one count of unlawful use of a vehicle, ORS 164.165, and one count of frst-degree theft by receiving, ORS 164.055. On appeal, defendant argues that the trial court erred in failing to give the "less satisfactory evidence" instruction, described in ORS 10.0945(7) and (8), and UCrJI 1030, to the jury. Held: The court did not err in refusing to give the "less satisfactory evidence" instruction because the record did not refect a basis for the jury to conclude that the evidence not produced was stronger and more satisfactory than the evidence offered, and therefore it was not a proper occasion to give the requested instruction.

         Affrmed.

         [289 Or.App. 416] JAMES, J.

         Defendant appeals a judgment of conviction for unlawful use of a vehicle, ORS 164.165, and first-degree theft by receiving, ORS 164.055, assigning error to the trial court's failure to give the "less satisfactory evidence" jury instruction, described in ORS 10.095(7) and (8), and Uniform Criminal Jury Instruction (UCrJI) 1030. The state argues this was an inappropriate occasion to give the "weaker and less satisfactory evidence" instruction. We agree with the state and affirm.

         "In reviewing the trial court's refusal to give a requested instruction, we view the record in the light most favorable to establishment of the facts necessary to require that instruction." State v. Eseland, 260 Or.App. 741, 742, 320 P.3d 657 (2014). On June 6, 2013, defendant brought a trailer into Winter Lake Recycling, a metal recycling yard that purchased scrap metal for recycling. Defendant had been to Winter Lake Recycling several times prior. Defendant was towing the trailer and drove it over a scale that the recycling yard used to weigh scrap metal. The recycling yard purchased the trailer from defendant. They provided defendant with a receipt which defendant signed, and made a copy of his driver's license for their records. A video recording of the trailer on the scale was also made as part of the yard's regular business practice.

         About a week later, Wayne Van Burger, the owner of the property where the trailer had been stored, noticed the trailer was missing. Van Burger called the owner of the trailer, Gregory Aasen, to notify him it was missing. Aasen located his trailer at Winter Lake Recycling and was able to identify the trailer, because it was a custom built piece of equipment.

         When the police were notified and arrived at Winter Lake Recycling, Herbert "Jake" Kohl, the owner of Winter Lake Recycling, showed the investigating officer footage of defendant driving the trailer over the scale. Though Kohl did not recall giving the investigating officer a copy of that footage, his wife, Rebecca Kohl, testified that she gave an officer the video of the defendant crossing the scale. Jake [289 Or.App. 417] and Rebecca Kohl both testified to having previously interacted with-and purchased scrap metal from-defendant on several occasions and indicated they were familiar with him based on those previous interactions.

         At trial, defendant requested the "less satisfactory evidence" instruction, because the state failed to produce at trial the video of defendant driving across the scale at the recycling yard with the trailer. The trial court declined to give that instruction, and explained that, although it would not give that instruction to the jury, defendant could make an argument to that effect to the jury in defendant's closing arguments, which defendant did. Ultimately, the jury convicted defendant of unlawful use of a vehicle, ORS 164.165, and first-degree theft by receiving, ORS 164.055.

         On appeal, defendant assigns error to the court's refusal to give UCrJI 1030 to the jury, arguing that the state possessed and failed to produce at trial a video recording of defendant crossing the scale at the metal recycling yard. Defendant argues that there is a basis for the jury to conclude that the unoffered evidence is stronger and more satisfactory than the evidence that the state offered at trial, and the state's failure to offer the video supports an inference that the evidence would have been adverse to the state, and therefore, UCrJI 1030 should have been given to the jury. In response, the state argues that the instruction was inappropriate in this circumstance, and that the record does not show that the state ...


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