State v. Rexroad

Under ORS 164.135, control must be actual and not merely constructive.

Defendant appealed his conviction for Unauthorized Use of a Vehicle and Tampering with Physical Evidence. Defendant assigned error to the trial court’s denial of motions for judgments of acquittal on both charges. On appeal, Defendant argued that there was insufficient evidence to show he knew that official proceedings were about to commence related to the evidence and that there was insufficient evidence to show that he exercised sufficient control over the vehicle. In response, the state argued Defendant knew that the other party to the text messages he deleted had been arrested and that law enforcement wanted to interview him, and that evidence showed Defendant and the other party were “operating as a team” such they shared control over the vehicle. Under ORS 164.135, control must be actual and not merely constructive. The Court found that a reasonable juror could infer that Defendant’s knowledge of the other party’s arrest and jailing was enough to establish Defendant’s knowledge that official proceedings had or were about to commence. The Court also found that the state’s constructive control theory for the Unauthorized Use of a Vehicle was not supported by the statute. The Court reasoned that the legislature’s use of the word “control” instead of the more flexible term “possess,” the fact that the statute was intended to replace the joy-riding statute, which necessarily required actual control, and the fact that other statutes, such as theft by receiving, cover the conduct the state asserts a constructive control theory would cover, show that actual control is required by the language of ORS 164.135. Conviction on Count 1 reversed; remanded for resentencing; otherwise affirmed.