State v. Eastep

746 August 10, 2017 No. 42
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
THOMAS ELDON EASTEP,
Petitioner on Review.
(CC 13CR0802; CA A155418; SC S064057)
On review from the Court of Appeals.*
Argued and submitted January 10, 2017.
Laura E. Coffin, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. Also
on the brief was Ernest G. Lannet, Chief Defender, Office of
Public Defense Services.
Jeff J. Payne, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters, Landau,
and Nakamoto, Justices.**
LANDAU, J.
The decision of the Court of Appeals is reversed. The
conviction for unauthorized use of a vehicle is reversed. The
remaining convictions are affirmed, but the sentences are
vacated, and the case is remanded for resentencing.
______________
** On appeal from Coos County Circuit Court, Richard L. Barron, Judge.
277 Or App 673, 371 P3d 1287 (2016).
**  Baldwin, J., retired March 31, 2017, and did not participate in the decision
of this case. Brewer, J., retired June 30, 2017, and did not participate in the deci-
sion of this case. Flynn and Duncan, JJ., did not participate the consideration or
decision of this case.
Cite as 361 Or 746 (2017) 747
Case Summary: Defendant was charged with unauthorized use of a vehicle
(UUV). The state’s evidence at trial showed that defendant had arranged to sell
another person’s truck, which was in a significant state of disrepair, for scrap.
The trial court denied defendant’s motion for a judgment of acquittal, a jury
thereafter convicted defendant as charged, and the Court of Appeals affirmed.
Held: (1) A vehicle may remain a “vehicle,” within the meaning of the UUV stat-
ute, ORS 164.135, even if it needs significant, but still reasonable, repairs; but
(2) the state failed to establish that the truck that defendant had arranged to sell
was in such a condition that it would have been reasonable to restore it to an oper-
able condition; and, therefore, (3) the trial court erred when it denied defendant’s
motion for judgment of acquittal.
The decision of the Court of Appeals is reversed. The conviction for unautho-
rized use of a vehicle is reversed. The remaining convictions are affirmed, but the
sentences are vacated, and the case is remanded for resentencing.
748 State v. Eastep
LANDAU, J.
In this criminal case, defendant arranged to sell
another person’s truck for scrap. At the time, the truck was
in a significant state of disrepair. He was charged with,
and ultimately convicted of, unauthorized use of a vehicle
(UUV). ORS 164.135. At trial, he argued that the state had
failed to prove that he had used another person’s “vehicle,”
because the truck that he had arranged to sell was in a state
of significant disrepair and was not currently operable. The
trial court disagreed, and the Court of Appeals affirmed.
State v. Eastep, 277 Or App 673, 371 P3d 1287 (2016). On
review, defendant argues that, at least as used in the stat-
ute defining the offense of UUV, a “vehicle” must be capa-
ble of operation—which means either currently operable or
operable with ordinary repairs—and there is no evidence
that the truck was capable of operation. The state argues
that the statute contains no requirement that a vehicle be
currently operable or that it can become operable with ordi-
nary repairs. In the state’s view, a vehicle in need of signifi-
cant repairs still may qualify as a “vehicle” under the UUV
statute.
We agree with the state that the word “vehicle,” as
it is used in ORS 164.135(1)(a), includes no requirement of
either current operability or capability of operation with only
ordinary repairs. A vehicle may remain a “vehicle” within
the meaning of that statute even if it needs more signifi-
cant, but still reasonable, repairs. In this case, however, the
state failed to establish that the truck that defendant had
arranged to sell was in such a condition that it would have
been reasonable to restore it to an operable condition. We
therefore reverse defendant’s conviction.
We review the facts, and all reasonable inferences
to be drawn from them, in the light most favorable to the
state. State v. Davis, 360 Or 201, 205, 377 P3d 583 (2016).
Stuart owned a pickup truck that was about 21 years old.
The truck’s “clutch had gone out,” so she had it towed to a
location between her property and a nearby boat ramp park-
ing lot. Although the truck was not operable, Stuart used
it to store expensive tools. The truck sat by the boat ramp
parking lot for four or five months.
Cite as 361 Or 746 (2017) 749
Defendant noticed that the truck had been sit-
ting there for a few days. He did not know who owned it.
Nevertheless, he called an automobile wrecking company to
have it towed. He completed a form certifying that he had a
possessory lien on the truck and that he had properly fore-
closed on that lien. The company towed the truck and paid
defendant $100.
Later that day, Stuart noticed that the truck was
gone. She called the police to report it stolen. Police investi-
gated and found that it had been towed away. The automo-
bile wrecking company later returned the truck to Stuart.
Within a month after that, Stuart sold the truck for
$321, with the sales price based on weight, to a scrap metal
business, in an effort “[t]o take whatever [she] could get for
it.” A mechanic working for the business was able to start
and run the engine, but the engine and the clutch pedal
were “seized,” and the engine “was rattling so bad that [it]
was no good.” He also observed that the interior was torn up
and “no good.” The mechanic determined that the truck was
“not capable of moving” under its own power because either
the clutch or the transmission had seized up and that the
truck was “no good,” “not operable,” and “strictly just scrap.”
The owner of the business planned to have it “scrapped out”
by having it demolished after removing and saving a few
windows.
Defendant was charged with UUV, for “exercis[ing]
control over” the truck without Stuart’s consent, ORS
164.135(1)(a). He was also charged with first-degree theft of
the truck, second-degree theft of the $100 that he received
from the automobile wrecking company, and false swearing.
The case was tried to a jury. At the close of the state’s case-
in-chief, defendant moved for judgment of acquittal on the
UUV count, arguing that the state was required to prove
that the truck had been “operable” at the time that he exer-
cised control over it. The trial court denied the motion. The
jury found defendant guilty of UUV, second-degree theft,
and false swearing, and the court entered a judgment of con-
viction and sentence on those counts.
Defendant appealed the judgment, assigning error
to the trial court’s denial of his motion for judgment of
750 State v. Eastep
acquittal on the UUV count. The Court of Appeals affirmed,
reasoning that nothing in ORS 164.135(1)(a) required the
state to prove that the vehicle had been “operable.” Eastep,
277 Or App at 678.
On review, defendant argues that the UUV stat-
ute requires the state to prove that a “vehicle” is “capable of
operation.” According to defendant, “[a]n ‘inoperable vehicle’
in the context of UUV is an oxymoron.” In his view, “[t]o
be a vehicle, something must at least be capable of operat-
ing as a means of conveyance or transportation.” Defendant
acknowledges that a truck or automobile that is in need of
ordinary maintenance or repair—for example, one that has
a flat tire or an empty gas tank—qualifies as a “vehicle”
within the meaning of ORS 164.135(1)(a). But he insists
that the term excludes “a wrecked vehicle or an inoperable
truck used for scrap.” In this case, he argues, the evidence
was that Stuart’s truck was inoperable, was not capable of
functioning as a means of transportation, and was valu-
able only as scrap. The state counters that, “regardless of
whether a broken part or some other malfunction renders a
vehicle inoperable, it is still a ‘vehicle’ for the purposes of the
UUV statute,” as long as it is capable of becoming operable,
even with more than ordinary repairs.
Our task in construing the term “vehicle” in the
UUV statute, ORS 164.135, is to determine the meaning
that the legislature most likely intended, based on an exam-
ination of statutory text, other statutory context, legislative
history, and applicable rules of construction. State v. Gaines,
346 Or 160, 171-72, 206 P3d 1042 (2009). We begin with the
text. ORS 164.135 provides:
“(1)  A person commits the crime of unauthorized use
of a vehicle when:
“(a)  The person takes, operates, exercises control over,
rides in or otherwise uses another’s vehicle, boat or aircraft
without consent of the owner;
“(b)  Having custody of a vehicle, boat or aircraft pur-
suant to an agreement between the person or another and
the owner thereof whereby the person or another is to
perform for compensation a specific service for the owner
involving the maintenance, repair or use of such vehicle,
Cite as 361 Or 746 (2017) 751
boat or aircraft, the person intentionally uses or operates
it, without consent of the owner, for the person’s own pur-
pose in a manner constituting a gross deviation from the
agreed purpose; or
“(c)  Having custody of a vehicle, boat or aircraft pur-
suant to an agreement with the owner thereof whereby
such vehicle, boat or aircraft is to be returned to the owner
at a specified time, the person knowingly retains or with-
holds 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.
“(2)  Unauthorized use of a vehicle, boat or aircraft is a
Class C felony.”
The statute does not define the term “vehicle.”1 When stat-
utes do not define their terms, we assume that the legisla-
ture intended them to have their plain, ordinary meanings.
State v. Dickerson, 356 Or 822, 829, 345 P3d 447 (2015).
Webster’s defines a “vehicle” as “5 : a means of
carrying or transporting something : CONVEYANCE: as
a : a carrier of goods or passengers * * * specif : MOTOR
VEHICLE * * * b : a container in which something is con-
veyed * * * c : a piece of mechanized equipment * * * d : a
propulsive device.” Webster’s Third New Int’l Dictionary
2538 (unabridged ed 2002).2 Other dictionaries supply sim-
ilar definitions. See, e.g., Funk & Wagnalls New Standard
Dictionary of the English Language 2637 (1963) (similarly,
“[t]hat in or on which anything is or may be carried; * * *
conveyance”).
1
The Oregon Vehicle Code currently defines the term “vehicle” as “any device
in, upon or by which any person or property is or may be transported or drawn
upon a public highway and includes vehicles that are propelled or powered by
any means.” ORS 801.590. That definition, however, post-dates enactment of the
UUV statute, see Or Laws 1983, ch 338, § 109; it also is not cross-referenced in
the UUV statute.
2
ORS 164.135(1)(a) was enacted in 1971, as we explain later in this opinion.
Webster’s Third was originally published in 1961. Although it has been republished
in 1966, 1971, 1986, 1993, and 2002, the dictionary itself has not changed, except for
minor corrections. Any new definitional material since 1961 appears in an adden-
dum section at the beginning of each republication. See generally https://www.
merriam-webster.com/about-us/ongoing-commitment (accessed Aug 2, 2017).
As a result, any version of Webster’s Third—regardless of its copyright date—pro-
vides a relevant source of ordinary meaning for statutes enacted any time after
1961, if not earlier.
752 State v. Eastep
Those definitions do suggest that a “vehicle” is
defined in terms of its function, namely, transportation. But
none explicitly requires that a means of transporting must
be currently operable, or operable with ordinary repairs,
to qualify as a “vehicle.” That is consistent with common
usage; it is not uncommon to refer to currently inopera-
ble trucks or cars—regardless of the extent of disrepair—
as “inoperable vehicles,” for example. See, e.g., Sanford
A. Kaplan, Westchester Opinion; When There is a Driving
Hazard, Report It, New York Times (Sept 13, 1987) (“The
car itself had been badly battered, the windshield shat-
tered. An air of desolation surrounded the inoperable vehi-
cle.”) 3; Anthony C. Carpio, Burbank Officials Discuss “More
Aggressive” Code-Enforcement Policies to Catch Violators,
Los Angeles Times, June 16, 2017 (“The city could also con-
sider cleanup campaigns * * * to remind residents to address
any non-hazardous code violations on their property, such as
inoperable vehicles and over-height weeds.”).4 In fact, nearly
all states have statutes regarding “abandoned” or “junk”
vehicles, which are no less “vehicles” merely because they
are currently inoperable or in a significant state of disre-
pair. One of Oregon’s highway beautification statutes, for
example, refers to “junked, dismantled, wrecked, scrapped
or ruined motor vehicles.” ORS 377.605(5); see also Ariz Rev
Stat § 28-4881 (“junk vehicle” defined as “a vehicle that is
in such a state of deterioration that it cannot be profitably
dismantled or salvaged for parts and cannot be profitably
restored”); Wash Rev Code § 46.55.010(5) (“[j]unk vehicle”
defined as one that is, among other things, “apparently
inoperable”).
In short, defendant is incorrect in asserting that the
ordinary meaning of the term “vehicle” necessarily requires
some element of operability—such as being capable of oper-
ation with ordinary repairs. To the contrary, the ordinary
meaning of the term is, at least potentially, much broader
than that. It remains to be seen whether the way in which
the word is used in ORS 164.135 suggests a less expansive
3
See http://www.nytimes.com/1987/09/13/nyregion/westchester-opinion-
when-there-is-a-driving-hazard-report-it.html (accessed Aug 2, 2017).
4
See http://www.latimes.com/socal/burbank-leader/news/tn-blr-me-code-
enforcement-20170616-story.html (accessed Aug 2, 2017).
Cite as 361 Or 746 (2017) 753
meaning of the term. See State v. Cloutier, 351 Or 68, 96,
261 P3d 1234 (2011) (“In construing statutes, we do not sim-
ply consult dictionaries and interpret words in a vacuum.
Dictionaries, after all, do not tell us what words mean, only
what words can mean, depending on their context and the
particular manner in which they are used.” (Emphasis in
original.)).
The text of ORS 164.135 suggests a broader mean-
ing of the term “vehicle” that is not limited to immediate
operability or capable of operation with ordinary repairs.
First, subsection (1)(a) of the statute provides that a per-
son commits the offense of UUV when he or she “takes,
operates, exercises control over, rides in or otherwise uses”
another’s vehicle (or boat or aircraft). Not all of those actions
require that the vehicle be currently operable. It is possible,
for instance, to “exercise[ ] control over” or “otherwise use[ ]”
a vehicle regardless of whether it is currently in running
condition. The statute thus suggests that the interest that is
designed to be protected is not only the owner’s ability to use
a vehicle for transport, but for other purposes, as well. An
owner of a recreational vehicle, for example, may reside in it.
A person who sleeps in that vehicle without permission cer-
tainly may violate subsection (1)(a). And whether the vehicle
is currently running would seem to be of no consequence.
Second, subsection (1)(b)—which refers to a vehicle
taken in for, among other things, “maintenance” or “repair”—
expressly contemplates that a “vehicle,” within the mean-
ing of that statute, is not necessarily one that is currently
operable. Indeed, the subsection does not specify how much
“maintenance” or “repair” such a vehicle may need.
Third, subsection (1)(c)—which refers to unlawfully
retaining possession of a vehicle—likewise does not neces-
sitate a currently running vehicle; the act of retaining or
withholding possession could apply to a vehicle in virtually
any condition.
To sum up, nothing in ORS 164.135 suggests that
its reference to the term “vehicle” requires a currently oper-
ating car or truck or one that would be capable of operation
with ordinary repairs. To the contrary, it expressly contem-
plates that some amount of maintenance or repair may be
754 State v. Eastep
required without transforming what was once a “vehicle”
into something else. Moreover, the wording of ORS 164.135
indicates that it is intended to protect a vehicle owner’s
interest not just in using it for transportation purposes,
but for other purposes that may not necessitate its current
operability.
We also consider prior case law construing the pro-
vision at issue. State v. McAnulty, 356 Or 432, 441, 338 P3d
653 (2014). This court has had one occasion on which to
interpret the term “vehicle” in ORS 164.135(1)(a), in State
v. Macomber, 269 Or 58, 523 P2d 560 (1974). Macomber
involved a UUV conviction under the same statute at issue
in this case, based on evidence that the defendant had pos-
sessed multiple parts of a partially disassembled stolen
truck. Id. at 59. On appeal, the state argued that there was
evidence that the defendant had admitted that the truck
was in running order when he first acquired it. Id. at 60.
The court, however, concluded that the record contained no
such admission; instead, the record showed only that he had
acquired the truck “as a wreck and that he was rebuilding it.”
Id. at 61 n 2 (internal quotation marks omitted). The court
concluded that the evidence constituted “at most an admis-
sion that the defendant obtained possession of a wrecked
truck, which would not constitute a vehicle capable of opera-
tion.” Id. Because there was no evidence that the defendant
had used a vehicle “capable of operation,” the court reversed
the conviction. Id. at 62.
Of significance, the court in Macomber did not say
that, to qualify as a “vehicle” under the UUV statute, the
truck had to be in running order, only that it be “capable
of operation,” that is, not be completely disassembled or
“wrecked.” That suggests an allowance for some measure
of repairs, at least up to a limit. In some cases, the cost of
repairs will prove prohibitive, at which point the car or truck
is a “wreck” and no longer a “vehicle” within the meaning of
the statute.
Also relevant to our analysis of ORS 164.135 are
prior versions of the statute, as well as its enactment history.
Before 1971, three statutes criminalized activity that, for
the most part, now generally falls within the UUV statute.
Cite as 361 Or 746 (2017) 755
The first pre-1971 statute prohibited “tak[ing] or
us[ing]” another’s vehicle without authorization, but “with-
out intent to steal it.” Former ORS 164.670(1) (1969), repealed
by Or Laws 1971, ch 743, § 432. This court characterized
that earlier prohibition against “taking” another’s car as a
“joy-riding” statute. State v. Eyle, 236 Or 199, 201, 388 P2d
110 (1963). The court had no occasion to interpret what the
statute meant by “using” another’s car without permission.
But, given that the statute referred to “tak[ing] or us[ing]”
another’s vehicle, it is likely that the legislature intended
that “us[ing]” amounted to something other than taking—
that is, joy-riding. And, as we have noted above, vehicles are
routinely “us[ed]” for purposes other than driving, including
for example, sleeping and storage. Those purposes do not
necessarily require a currently operable vehicle or one that
is capable of operation with ordinary repairs.
The second pre-1971 statute provided that anyone
who, without the consent of the owner of a motor vehicle,
“climbs upon or into such motor vehicle, whether it is at rest
or in motion; or, while it is at rest or unattended, attempts
to manipulate any of the levers, the starting crank or other
device, brakes or mechanism, or sets the vehicle in motion,”
would be subject to a sentence of up to six months impris-
onment. Former ORS 164.650 (1969), repealed by Or Laws
1971, ch 743, § 432. That statute, which expressly applied
whether the vehicle is at rest or in motion, likewise does
not appear to have required that the vehicle be currently
operable or capable of operation with ordinary repairs. For
example, the statute appears to have prohibited releasing
the brake of a car, regardless of whether it had an empty gas
tank, or a dead battery, or a flat tire.
The third pre-1971 statute prohibited injury or
interference with a motor vehicle without the owner’s con-
sent, former ORS 164.660 (1969), repealed by Or Laws 1971,
ch 743, § 432. Specifically, the statute applied if a person
“wilfully breaks, injures, tampers with or removes any part
of such [motor] vehicle for the purpose of injuring, defacing
or destroying it, or temporarily or permanently prevent-
ing its useful operating for any purpose, or in any manner
756 State v. Eastep
wilfully or maliciously interferes with or prevents the run-
ning or operation of such motor vehicle.”
At least the first set of described actions—breaking, injur-
ing, tampering, or removing vehicle parts—could occur
whether or not the motor vehicle currently was in running
condition.
What is now ORS 164.135 was enacted as part of
the 1971 Oregon Criminal Code, Or Laws 1971, ch 743,
§ 134. It was intended to incorporate the first two preexist-
ing statutes and part of the third. As the commentary to the
new Criminal Code explained, the new statute included
“the kinds of acts covered by [former] ORS 164.670, the
existing ‘joy-riding’ statute, as well as conduct such as
manipulating, starting[,] or tampering with motor vehi-
cles ([former] ORS 164. 650, [former ORS] 164.660)[, but]
[d]amaging a vehicle would be covered by the sections on
criminal mischief.”
Commentary to Criminal Law Revision Commission Pro-
posed Oregon Criminal Code, Final Draft and Report § 134,
142 (July 1970). It is thus apparent that, in enacting the
current UUV statute, the legislature intended to preserve
existing prohibitions that could apply to vehicles that are
not necessarily in current running condition.
Nothing in the record of the Criminal Law Revision
Commission’s deliberations suggests a contrary intention.
A subcommittee of the commission addressed a proposed
draft of what is now ORS 164.135, based on the Model Penal
Code, § 223.9, and New York Revised Penal Law, § 165.05
(1965). Most of its discussion concerned the types of vehi-
cles that would be included—specifically, whether the stat-
ute should be limited to “motor-propelled” vehicles or should
embrace other vehicles such as gliders, sailboats, and bicy-
cles. See generally Tape Recording, Criminal Law Revision
Commission, Subcommittee No. 1, Apr 6, 1968, Tape 2,
Side 2 (statements of committee members and Commission
Project Director Paillette). Ultimately, the subcommittee
agreed to include gliders and sailboats, but not bicycles, and
so it agreed on wording that referred to a “vehicle, boat, or
aircraft.” Id.
Cite as 361 Or 746 (2017) 757
The subcommittee also briefly discussed the prohib-
ited conduct set out in the proposed draft, which included
taking, operating, exercising control over, riding in, or
otherwise using another’s vehicle, boat, or aircraft. Project
Director Paillette explained that the proposed legislation
would broaden the conduct currently prohibited in the exist-
ing joy-riding statute. The subcommittee then discussed
whether “entering” a vehicle without consent, also prohib-
ited under then-existing law, would amount to unauthorized
use. Members tentatively agreed that, to violate the UUV
statute, a person would need to “exercise control,” or other-
wise start or somehow “use” the vehicle. Tape Recording,
Criminal Law Revision Commission, Subcommittee No. 1,
Apr 6, 1968, Tape 2, Side 2 (statements of Representative
Elder, Paillette, and others); see also Tape Recording,
Criminal Law Revision Commission, July 19, 1968, Tape 9,
Side A (statement of Senator Burns, Chair of Subcommittee
No. 1).
The full Commission later approved the subcommit-
tee’s revisions to the draft legislation, see Minutes, Criminal
Law Revision Commission, May 14, 1970, 35 (approving
section setting out new crime of UUV), and the legislature
enacted them into law, Or Laws 1971, ch 743, § 134.
To recap, then, the ordinary meaning of the word
“vehicle” is broad enough to include cars and trucks that
may not currently be in operating condition, even if in need
of extensive repairs. The use of the word in ORS 164.135
itself, as well as the predecessor statutes that it was
intended to incorporate, also suggest that it is not limited
to currently operating cars or trucks; in fact, some amount
of needed maintenance or repair is expressly contemplated
in ORS 164.135(1)(b). At the same time, this court’s decision
in Macomber holds that there is something of an outer limit
to the condition of a car or truck if it is to be considered a
“vehicle” within the meaning of the UUV statute, namely,
that it not be in such a state of disrepair as to constitute a
“wrecked” vehicle. 269 Or at 61 n 2. Implicit in the apparent
reasoning of Macomber is the idea that the condition of a
car or truck may be such that it is no longer reasonable to
expend the time and resources that would be required to
restore it to running condition.
758 State v. Eastep
It strikes us that determining the precise point at
which it is no longer reasonable to invest in repairing a car
or truck to maintain its condition as a “vehicle” necessarily
will depend on the circumstances of the case, viz., the nature
of the disrepair, the amount of effort and expense required
to make the car or truck operable, its original cost, its cur-
rent value, its current uses, and so forth. In other words,
whether the evidence shows that the condition of a given
car or truck is such that it is beyond reasonable repair is a
question for the trier of fact.
In that regard, we note that the issue is not one
unique to Oregon law. In fact, the question whether a given
vehicle is in such a state of disrepair so as to lose its char-
acter as a “vehicle” within the meaning of a statute is a
common one that has been addressed in a large number of
decisions. So far as we can determine, the consistent conclu-
sion of courts in other jurisdictions addressing the issue is to
treat it as one for the trier of fact. See, e.g., State v. Blevins,
128 Ariz 357, 625 P2d 946, 948 (Ariz Ct App 1981) (whether
a vehicle is so “demolished” or “dismantled” that it can no
longer be considered a “vehicle” depends on facts of each
case); Parnell v. State, 261 SE2d 481, 481-82 (Ga Ct App
1979) (evidence was sufficient to establish that defendant
had stolen a motor “vehicle” even though the car “had no
transmission or radiator”); State v. Ridinger, 266 SW2d 626,
632 (Mo 1954) (evidence was sufficient to establish that bus
currently used as source of spare parts was a motor “vehi-
cle”); State v. Houston, 1987 WL 30370 (1987) (“Ordinarily,
the decision whether a partially dismantled vehicle remains
a motor vehicle * * * is a question of fact for the jury.”).5
The remaining question for us is whether a rational
factfinder could have found, from the evidence presented in
this case, facts necessary to establish that defendant engaged
5
Florida seems to be an exception. But that appears to be due to the fact that
a Florida statute defines a vehicle as an “automobile, motorcycle, truck, trailer,
* * * or any other vehicle operated on the roads of this state.” Fla Stat § 320.01
(1)(a) (emphasis added). Under that statute, Florida courts have concluded that
vehicles that are even temporarily inoperable are not considered “vehicles” for
the purposes of that statute. See, e.g., Quanstrom v. Standard Guar. Ins. Co., 504
So 2d 1295, 1297 (Fla Dist Ct App 5th Dist 1987) (holding that car that had been
inoperable for two months was not a motor vehicle).
Cite as 361 Or 746 (2017) 759
in unauthorized use of a “vehicle” under ORS 164.135. See
State v. Clemente-Perez, 357 Or 745, 762, 359 P3d 232 (2015)
(in reviewing motion for judgment of acquittal, court deter-
mines whether state presented sufficient evidence from
which rational trier of fact, drawing reasonable inferences,
could find each element beyond reasonable doubt). We con-
clude that a rational jury could not have so found.
The undisputed evidence shows that Stuart’s truck
was about 21 years old. Its clutch had gone out, and it had
been parked and not operated for four to five months. During
all that time, and up until defendant took the truck, Stuart
had not been using it for transport, although she had been
using it to store tools. Shortly after defendant’s arrest, in
an effort “[t]o take whatever I could get for it,” Stuart sold
the truck to a scrap metal business for $321, based on its
weight. The owner of the scrap metal business testified that
the truck was not operable, “not capable of moving,” and not
going anywhere under its own power; and that he planned
to have it “scrapped out.” Although the engine turned over
and ran, it “seized up” to the point where, once loose, “it
was rattling so bad that the engine was no good.” The clutch
pedal also was “seized” and “no good,” the clutch itself or
the transmission was “seized up,” and the interior also was
“no good.” The mechanic had determined almost immedi-
ately after starting the truck that it was “scrap”; the owner
similarly had concluded that the truck was “strictly just
scrap” and that, after removing and saving a few windows,
he would have it demolished.
None of those facts permitted a rational jury to
infer or otherwise determine the truck was in such a condi-
tion that it was reasonable to invest in repairing it to restore
it to running condition. It follows that the state presented
insufficient evidence to prove that defendant had exercised
control, without the owner’s consent, over a “vehicle” under
the UUV statute, ORS 164.135(1)(a). The trial court there-
fore erred when it denied defendant’s motion for judgment
of acquittal. See generally State v. Link, 346 Or 187, 204-
12, 208 P3d 936 (2009) (after construing disputed element
in aggravated felony murder statute, court concluded that
state presented insufficient evidence to satisfy that element
760 State v. Eastep
under its construction and, therefore, trial court erred in
denying motion for judgment of acquittal). Accordingly, we
reverse the judgment of conviction in part and remand to
the trial court, so that it can enter a new judgment that
does not include a guilty verdict on the UUV count and that
resentences defendant accordingly.
The decision of the Court of Appeals is reversed.
The conviction for unauthorized use of a vehicle is reversed.
The remaining convictions are affirmed, but the sentences
are vacated, and the case is remanded for resentencing.