State v. Witt

313 Or.App. 479

493 P.3d 543

STATE of Oregon, Plaintiff-Respondent,

v.Hilary Paige WITT, Defendant-Appellant.

A168873

Court of Appeals of Oregon.

Submitted May 29, 2020.

July 21, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Francis C. Gieringer, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Kistler, Senior Judge.

KISTLER, S. J.

Defendant appeals a judgment of conviction for the unlawful use of a vehicle (UUV). See ORS 164.135(1)(a) (defining that offense). She raises primarily two issues on appeal. She argues that the trial court should have granted her motion for a judgment of acquittal because no reasonable juror could find that she knowingly was driving a stolen car. Alternatively, she argues that the judgment should be reversed because a nonunanimous jury found her guilty. We agree with defendant's second argument but not her first. We accordingly reverse the trial court's judgment and remand this case for further proceedings.¹

On January 12, 2018, the owner of a 1993 Subaru Impreza reported that his car had been stolen in Southeast Portland. Approximately three months later, on March 9, Officer Welch noticed an older model Subaru at a gas station in Tigard. Although Welch was not aware of the reported theft, the Subaru caught his eye because older models of that car have a basic ignition system, which makes them a target for thieves. As Welch explained, a thief can use a "shaved key, a key that's been filed or shaved down," to open an older model Subaru and start it. Welch entered the car's license plate on a computer in his patrol car, which showed that the Subaru had been reported as stolen.

No one was in the Subaru when Welch first saw it. Shortly afterwards, he saw defendant come out of the gas station, get into the Subaru, and begin driving towards the north entrance of the gas station where Welch's car was parked. Defendant "came up right behind [Welch] at the entrance where [his car] was at, and almost immediately put her car in reverse and actually drove to the other entrance," even though Welch's car was not blocking her exit. Welch followed defendant's car until backup arrived and then stopped her. He testified that, although stopping a person in a suspected stolen car can entail a higher risk than a normal traffic stop, defendant did not resist when Welch stopped and later questioned her.

Welch told defendant that the car she was driving had been reported as stolen. Defendant responded that she had bought the car a few weeks earlier after seeing it for sale on Craigslist. She gave Welch a generic description of the seller (older white male) and told him that she had paid $550 for it. She could not remember, however, the seller's name, phone number, email, or how to get in touch with him, nor could she remember where the sale had taken place. When asked, she did not produce "any registration, title, or any other documents that would show ownership." She said that she had a bill of sale either in her glove box or in her apartment. However, when Welch checked the glove box, he did not find a bill of sale or "any documents showing that she was supposed to be in possession of the car."

Welch noticed that "there was a lot of property in the vehicle"—"clothes, hygiene items, and stuff that was leaking, and food." He also found two keys. The head of the first key had a rubber or plastic cover that "looked like it had been melted or like scratched down, and you couldn't see a logo on either side of it." The blade of that key had been shaved and had "obvious tool marks all along" it. As Welch explained, "it's a lot thinner. It's completely uneven in some places." The notches and ridges normally found on the blade of a key had been shaved away, and what remained of the blade was "so thin that [Welch] was actually concerned that if [he] messed with it too much [he] might break it."

Welch found a second key in a cup holder between the driver's seat and the front passenger's seat. The head of that key also had a rubber or plastic cover, which was not damaged. Welch testified that "it had a Saturn logo on it. I think it actually said Saturn on it." The blade of that key also had been shaved down but was not as thin as the first one. When asked about the two keys, defendant told Welch that they came with the car. She said that she used the first key, the one with the defaced logo and the "very thin" blade to operate the car. When asked whether she thought that the keys looked "normal," defendant replied that she thought they were worn down because of age. Welch testified, "I remember specifically telling her that's not really how this is."²

Welch agreed on cross-examination that the Subaru did not have other indicia of theft, such as damage to the steering column or broken windows. He testified on redirect, however, that, when a person has a shaved key for that model year Subaru, there is no need to "damage the locks or the ignition or the steering column to operate the vehicle or access it." A shaved key is enough to "unlock the door and start the ignition."

Defendant testified at trial and reiterated that she did not know the car was stolen. During her testimony, she introduced a document captioned "Bill of Sale," which was handwritten on a lined piece of notebook paper. The document is dated March 1, 2018, and identifies the actual owner of the Subaru but describes him as "deceased." The person listed as the seller had the same last name as the owner and purported to transfer "all rights, title, and interest" in the Subaru on the deceased owner's behalf. (The owner testified at trial and laughed when he saw himself identified as "deceased" on the bill of sale. He testified that the Subaru had been stolen from him, that he neither knew nor was related to the person listed as the seller on the bill of sale, and that he had not authorized the car's sale.)

At trial, defendant provided additional details about her acquisition of the Subaru, which she had not remembered when Welch stopped her. She testified that she had bought the car from a person who identified himself as "John" and that the transaction had been completed at a Safeway on SE 122nd Street and Powell Avenue in Portland. She said that she gave John $500 in cash and that he gave her the car along with the handwritten bill of sale. On cross-examination, she testified that John had not produced the title to or registration for the car when he sold it to her, that she had not attempted to register the car with the state, and that John had not provided any evidence to show that he had inherited the car or was otherwise authorized to sell it on the deceased owner's behalf. Finally, defendant acknowledged on direct examination that she had pleaded guilty to felony theft in 2013 and 2014 and to misdemeanor theft in 2014, 2017, and 2018.

On appeal, defendant assigns error to the trial court's ruling denying her motion for judgment of acquittal. On that issue, the information alleged that defendant "did unlawfully and knowingly take, operate, ride in, exercise control over and otherwise use a vehicle, to wit: 1993 Subaru Impreza Outback, without the consent of the owner," in violation of ORS 164.135(1)(a). At trial, the state did not contend that defendant took the Subaru on January 12, 2018. Rather, it contended that, even if someone else stole the Subaru, defendant knew that the Subaru was stolen and, as a result, knew that she did not have the owner's consent to "operate, * * * exercise control over [or] otherwise use" the Subaru. See ORS 164.135(1)(a) (prohibiting those acts without the owner's consent).

At trial and again on appeal, the parties disagree whether the evidence was sufficient to permit a reasonable juror to infer that defendant knew the Subaru was stolen. See State v. Bell , 220 Or. App. 266, 269, 185 P.3d 541 (2008) (explaining that, even though ORS 164.135(1)(a) does not specify a culpable mental state, the charging instrument in that case alleged that the defendant had acted knowingly and thus required proof of that mental state). We recently have addressed that issue in a series of cases. See, e.g. , State v. Connelly , 298 Or. App. 217, 445 P.3d 940 (2019) ; State v. Peirce , 296 Or. App. 829, 440 P.3d 98 (2019) ; State v. Korth , 269 Or. App. 238, 344 P.3d 491 (2015). Although the answer to that issue will vary depending on the facts and circumstances of each case, our cases provide some guidance. We have recognized that evidence of general wrongdoing or suspicious behavior, standing alone, will ordinarily not be sufficient to permit a reasonable inference that a defendant knew that the car he or she was using had been stolen. Korth , 269 Or. App. at 246-47, 344 P.3d 491 ; State v. Shipe , 264 Or. App. 391, 398-99, 332 P.3d 334 (2014). In reaching that conclusion, we have found it telling that more specific indicia of theft—for example, a shaved key, damage to the steering column, or the defendant's awareness that there was no proof of registration—were absent from the record. See Korth , 269 Or. App. at 247, 344 P.3d 491 ; Shipe , 264 Or. App. at 397-98, 332 P.3d 334.

Our decision in Shipe is illustrative. In that case, the defendant was driving a truck that someone else had stolen. See 264 Or. App. at 392, 332 P.3d 334 (noting that the truck had been stolen while the defendant was incarcerated). The cab of the truck contained evidence of drug use, stolen property, and a case labeled "crime committing kit." Id. at 393, 332 P.3d 334. There was also evidence that the defendant had lied when asked who had let him use the truck; the defendant told an officer that "Richey" had allowed him to use the truck when the trier of fact could find that someone else (the d...