State v. Phillips

The term “vehicle” in ORS 164.135(1)(a) covers items such as trailers and conduct such as towing. State v. Eastep, 361 Or 746, 756–57, 399 P3d 979 (2017). The failure to include a “lesser-included offense can impermissibly enhance the risk of an unwarranted conviction” when (1) the “element that elevates the lesser-included offense to the greater one is doubtful” and (2) “there must be substantial evidence of a serious lesser offense.” Perida-Alba v. Coursey, 356 Or 654, 665, 342 P3d 70 (2015).

Defendant appealed a conviction of unauthorized use of a vehicle (UUV) and theft in the first degree after Defendant stole a utility trailer.  Defendant assigned error to the trial court’s jury instructions.  On appeal, Defendant argued that the UUV statute, ORS 164.135(1)(a), does not cover utility trailers, because it applies only to self-propelled vehicles.  Further, Defendant claimed that the trial court erred when it failed to give a lesser-included instruction for third-degree theft.  In response, the State asserted that the plain meaning of “vehicle” does not require self-propulsion.  The State conceded the failure to provide a lesser-included instruction was error, but posited that the error was harmless.  The term “vehicle” in ORS 164.135(1)(a) covers items such as trailers and conduct such as towing.  State v. Eastep, 361 Or 746, 756–57, 399 P3d 979 (2017).  The failure to include a “lesser-included offense can impermissibly enhance the risk of an unwarranted conviction” when (1) the “element that elevates the lesser-included offense to the greater one is doubtful” and (2) “there must be substantial evidence of a serious lesser offense.”  Perida-Alba v. Coursey, 356 Or 654, 665, 342 P3d 70 (2015).  The Court found that “the legislative history of ORS 164.135(1)(a)” confirmed that it covered Defendant’s actions regarding the trailer.  Further, the Court found that the “element of first-degree theft that lifted the theft to that degree” was not doubtful.  Thus, the Court held that Defendant did not have a basis for reversal.  Affirmed.