State v. Fitch ( 2024 )

556 October 23, 2024 No. 743
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
BOBBY JOE RICHARD FITCH,
Defendant-Appellant.
Yamhill County Circuit Court
21CR21762; A177906
Ladd J. Wiles, Judge.
Submitted November 20, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 335 Or App 556 (2024) 557
ORTEGA, P. J.
Defendant appeals his conviction for unlawful use of
a vehicle (UUV), ORS 164.135. He assigns error to the trial
court’s denial of his motion for judgment of acquittal, argu-
ing that the state adduced insufficient evidence to demon-
strate that defendant possessed the required mental state
under ORS 164.135. We conclude that the state offered suf-
ficient evidence to support the determination necessary for
defendant’s conviction: that he acted recklessly because he
was aware of and consciously disregarded a substantial and
unjustifiable risk that the vehicle was stolen. Accordingly,
we affirm.
After defendant was involved in a single-car acci-
dent, an officer responded and determined that the car had
been reported stolen several weeks earlier. In response
to the officer’s questions about the car’s status, defendant
stated that he had bought the car from “some Mexican dude”
after approaching the man in an apartment’s parking lot.
On investigation, however, the car’s owner claimed that he
did not know defendant, that he had never been approached
by anyone about selling the car, and that he had not con-
sented to anyone using it. Defendant could not produce the
car’s title or the bill of sale, but he claimed to have paper-
work in the car to replace a lost title. The car’s owner later
found mail and various registrations in the car with differ-
ent names on them.
A person commits the crime of UUV when “[t]he
person knowingly takes, operates, exercises control over or
otherwise uses another’s vehicle, * * * is aware of and con-
sciously disregards a substantial and unjustifiable risk that
the owner of the vehicle * * * does not consent to the tak-
ing, operation or other use of, or the exercise of control over,
the vehicle,” and the owner of the vehicle did not consent to
such use. ORS 164.135(2)(a)(A) - (C). Because the statute did
not assign a culpable mental state for UUV prior to a 2019
amendment, we previously determined that the state was
required to prove the culpable mental state specified in the
indictment. See, e.g., State v. Bell, 220 Or App 266, 269, 185
P3d 541 (2008) (determining that the state was required
to prove that the person actually knew the car was stolen
558 State v. Fitch
because the indictment alleged a knowing mental state).
Moreover, the Oregon Supreme Court later construed the
UUV statute under the default mental state provisions (ORS
161.085-161.115) to require a knowing mental state as to the
use of the vehicle without the owner’s consent, regardless of
what is pled in the charging instrument. State v. Simonov,
358 Or 531, 546, 368 P3d 11 (2016).
In 2019, the legislature amended ORS 164.135 to
specify that someone is guilty of UUV when that person
is “aware of and consciously disregards a substantial and
unjustifiable risk” that the owner did not consent to the per-
son’s use of the vehicle, ORS 164.135(1)(a)(B), establishing
recklessness as the culpable mental state for the offense.
ORS 161.085(9). Despite that amendment, we understand
defendant to argue that Simonov still applies despite the
legislative change to the statute. We are not persuaded.
Given the clear language of the statute specifying reckless-
ness as the culpable mental state, defendant’s assertion that
the legislature did not intend to change the requisite mental
state fails.
Defendant also argues that the state provided
insufficient evidence to prove that he acted with a reckless
mental state with respect to whether the car was stolen. He
claims that the lack of proof of ownership and an implausi-
ble story about the purchase of the car were not enough to
establish that he was aware of and disregarded a substan-
tial and unjustifiable risk that the owner did not consent to
his use of it.
To prove the mental state of recklessness, the state
must show that the risk was “of such nature and degree
that disregard thereof constitutes a gross deviation from the
standard of care that a reasonable person would observe in
the situation.” ORS 161.085(9). Viewing the facts in the light
most favorable to the state and accepting reasonable infer-
ences, State v. Lupoli, 348 Or 346, 366, 234 P3d 117 (2010),
we agree with the state that the evidence was sufficient for a
reasonable jury to conclude that defendant acted recklessly.
Defendant’s dubious story about the purchase, the lack of a
bill of sale or title for the car, and possession of other docu-
ments resembling various registrations in names that were
Cite as 335 Or App 556 (2024) 559
not defendant’s name were sufficient evidence that he disre-
garded the risk that the owner did not consent, which was a
gross deviation from the standard of care that a reasonable
person would observe in a similar situation.
Accordingly, we agree that, given the evidence at
trial, a rational trier of fact could conclude that defendant
committed the crime of UUV under ORS 164.135(1).
Affirmed.