State v. Taylor

                                      422

Argued and submitted November 21; reversed and remanded with instructions
  to merge the guilty verdicts on Counts 1 and 3 into a single conviction for
   second-degree robbery, remanded for resentencing, otherwise affirmed
                             December 29, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 JERMEL ARCILICIA TAYLOR,
                      Defendant-Appellant.
                 Washington County Circuit Court
                       21CR10213; A176138
                                   

    During a test drive of a vehicle, defendant told the salesperson who had
accompanied him that he had a gun and was taking the vehicle, and then drove
away after the salesperson got out of the vehicle. Defendant was convicted of
unauthorized use of a vehicle (UUV), ORS 164.135(1)(a) (2017), and second-
degree robbery, ORS 164.135, as a result. On appeal, in an unpreserved claim of
error, defendant relies on State v. Civil, 

, 

 (2017), and
State v. Fuller, 

, 

 (2020), to argue that he could not be
convicted of UUV under ORS 164.135(1)(a) (2017) because he obtained custody of
the vehicle by agreement with the owner. Defendant argues that he was therefore
entitled to a judgment of acquittal on the UUV charge and, by extension, the rob-
bery charge for which UUV was the predicate offense. Alternatively, he argues
that the court plainly erred by failing to merge the two guilty verdicts into a
single conviction for second-degree robbery. Held: It is not obvious that defendant
was entitled to a judgment of acquittal on the UUV charge under Civil and Fuller,
so any error in that regard was not plain. The court did err, however, in failing
to merge the verdicts.
    Reversed and remanded with instructions to merge the guilty verdicts on
Counts 1 and 3 into a single conviction for second-degree robbery; remanded for
resentencing; otherwise affirmed.



    Erik M. Buchér, Judge.
   Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 

 (2022)                            423

  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Aoyagi, Judge.
   AOYAGI, J.
   Reversed and remanded with instructions to merge the
guilty verdicts on Counts 1 and 3 into a single conviction for
second-degree robbery; remanded for resentencing; other-
wise affirmed.
424                                           State v. Taylor

        AOYAGI, J.
         This case arises from a vehicle test drive gone
wrong. A car dealership allowed defendant to test drive one
of its vehicles, with a salesperson present in the vehicle.
During the test drive, defendant forced the salesperson out
of the vehicle by telling him that he had a gun, and then
drove away. Defendant was convicted of second-degree rob-
bery and unlawful use of a vehicle (UUV). On appeal, he
contends that, as to each count, the trial court erred by not
granting a motion for judgment of acquittal (MJOA). In the
alternative, he argues that the court plainly erred by failing
to merge the two guilty verdicts into a single conviction for
second-degree robbery. As explained below, we conclude that
the court erred only with respect to merger. Accordingly, we
reverse and remand for merger and resentencing, and we
otherwise affirm.
                           FACTS
         We state the facts in the light most favorable to the
state, based on the standard of review for the denial of a
motion for judgment of acquittal. State v. Cervantes, 

, 

 (1994).
         In February 2021, defendant tried unsuccess-
fully to purchase a vehicle from a car dealership. He was
upset about not being able to purchase the vehicle. The
next day, he went to a different dealership, where he asked
to test drive a Cadillac. One of the dealership’s salesper-
sons, D, took defendant and his companion on a test drive.
Defendant drove, while defendant’s companion sat in the
front passenger seat, and D sat in the back seat behind
defendant. During the test drive, D directed defendant to a
gas station, as the car was low on fuel, and D paid for some
fuel. D then directed defendant to turn right out of the gas
station, which defendant did. When D directed defendant
to make another right turn, defendant continued straight.
Defendant then stopped the car. He told D that he really
liked the car, that he was “taking it,” and that he was going
to Miami. He then told D that he had a gun. D exited the
vehicle, refusing to give up his cell phone to defendant and
his companion. Defendant drove off. D called 9-1-1, and the
Cite as 

 (2022)                             425

police soon stopped the vehicle and arrested defendant,
who had dropped off his companion and was alone in the
vehicle.
         Defendant was indicted on two counts of second-
degree robbery, ORS 164.405 (Counts 1 and 2), and one
count of UUV, ORS 164.135 (Count 3). He waived his right to
a jury trial, and the case was tried to the court. Defendant
chose to proceed without counsel and therefore appeared
pro se at trial.
         At the close of the state’s evidence, the trial court
explained to defendant that the state was resting and that
it was his turn to present evidence, if he wanted, after which
the state would present rebuttal. The court then stated, sua
sponte, that it was making a “general” motion for judgment
of acquittal “on [defendant’s] behalf.” The court indicated
that it was doing so to protect defendant’s rights, because he
did not have an attorney, and that there was a “100 percent
chance” that a lawyer would make an MJOA, because they
“normally” do. The court described the MJOA that it was
making on defendant’s behalf as a “general” MJOA, “as to
all counts,” that “[t]he state hasn’t met [its] burden to prove
every single element beyond a reasonable doubt.” The court
gave the state an opportunity to respond to that motion, if it
wanted, and the state briefly explained why it believed the
evidence was sufficient to survive an MJOA. The court then
denied the MJOA.
         Defendant proceeded to put on his case. After hear-
ing all the evidence, the court found defendant guilty on
Counts 1 and 3, and it acquitted him on Count 2. Defendant
appeals the resulting judgment.
      MOTION FOR JUDGMENTS OF ACQUITTAL
        In his first two assignments of error, defendant
argues that the trial court erred by denying the MJOA that
it made on his behalf. The two MJOA issues are related, so
we discuss them together. We review the denial of an MJOA
to determine whether, viewing the facts in the light most
favorable to the state, a rational factfinder could have found
the essential elements of the crime beyond a reasonable
426                                                         State v. Taylor

doubt. Cervantes, 

. We note that our UUV dis-
cussion is based on the 2017 version of ORS 164.135.1
         As to the UUV count, defendant argues that he was
entitled to a judgment of acquittal because the state pro-
ceeded under ORS 164.135(1)(a). He points to State v. Civil,

, 

 (2017), and State v. Fuller,

, 

 (2020), for the proposition that a
person who possesses a vehicle by agreement with the owner
cannot be convicted of UUV under ORS 164.135(1)(a) based
on violating that agreement but, instead, can only be con-
victed of UUV, if at all, under ORS 164.135(1)(b) or (c). As to
the robbery count, defendant argues that, if he was entitled
to a judgment of acquittal for UUV, then he was also enti-
tled to a judgment of acquittal for robbery, because the UUV
charge was the predicate offense for the robbery charge.2
         Before addressing the merits of defendant’s argu-
ments, we must first consider the threshold issue of preser-
vation. “Generally, an issue not preserved in the trial court
will not be considered on appeal.” State v. Wyatt, 

, 

 (2000). We look to the purposes underlying
the preservation requirement to determine whether an issue
was adequately preserved. 

 “Ultimately, the preservation
rule is a practical one, and close calls * * * inevitably will
turn on whether, given the particular record of a case, the
court concludes that the policies underlying the rule have
been sufficiently served.” State v. Parkins, 

,

 (2009).
         Defendant points to the MJOA that the trial court
made on his behalf as preserving the claim of error or, alter-
natively, requests plain-error review. We conclude that the
    1
      Defendant’s crimes took place in 2021, so he should have been charged
with UUV under the current version of ORS 164.135, which reflects amendments
made in 2019. However, the indictment tracked the language of the 2017 version;
no one raised that issue below; and both parties make their arguments on appeal
under the 2017 version. Accordingly, our analysis is based on ORS 164.135(1)
(2017), amended by Or Laws 2019, ch 530, § 1, and all references herein are to
that version of the statute.
    2
      Second-degree robbery can be predicated on either theft or UUV. See ORS
164.405(1); ORS 164.395(1). Here, the indictment listed theft and UUV in the
alternative as the predicate offense for robbery, but the parties agree that the
state proceeded solely on the theory of UUV as the predicate offense. We there-
fore treat the UUV as the predicate offense for the robbery.
Cite as 

 (2022)                                             427

claim of error is not preserved.3 It is not entirely clear why
the court felt compelled to make an MJOA on defendant’s
behalf, especially when the court would be deciding for itself
at verdict whether the state proved its case. Putting that
aside, the fact remains that the MJOA was “general” in
nature. No specific arguments were made as to the UUV
count. No case law was cited. No one referred to an agree-
ment with the car dealership for defendant to have custody
of the car. Cf. Fuller, 

 (concluding that
the defendant had adequately preserved the Civil issue for
appeal, where he argued in support of his MJOA that he
had his half-sister’s permission to use her car). It is readily
apparent from the colloquy at trial that neither defendant,
the state, nor the court was thinking of the legal issue in
Civil and Fuller. Under the circumstances, the issue that
defendant raises on appeal was not adequately preserved
by the “general” MJOA made on his behalf. See State v.
Reynolds, 

, 

, rev den, 

 (2012) (treating a sufficiency-of-the-evidence argu-
ment as unpreserved, where the defendant made an MJOA
on all counts without argument, and the trial court denied
it on all counts with a general statement that the evidence
was sufficient).
         Our review is therefore limited to plain error. Even
when an issue is unpreserved, we have discretion to cor-
rect a “plain” error upon request. ORAP 5.45(1). An error is
“plain” when it is an error of law, the legal point is obvious
and not reasonably in dispute, and the error is apparent on
the record without our having to choose among competing
inferences. State v. Vanornum, 

, 

(2013). If the trial court made a “plain” error, it is a matter
of discretion whether we will correct it. State v. Gornick, 

, 

 (2006).
      We conclude that any error was not plain. Under
ORS 164.135(1)(a), a person commits UUV when a person

    3
      The state concedes preservation, but we have an independent obligation
to assess preservation, regardless of what position the parties take. Harrison
v. Hall, 

, 

, rev den, 

 (2007); see also
generally Cervantes v. Dept. of Human Services, 

, 

(2019) (“We are not bound to accept [a] concession and must decide whether to
accept it.”).
428                                             State v. Taylor

“takes, operates, exercises control over, rides in or other-
wise uses another’s vehicle” without the owner’s consent.
Here, there was evidence (and the trial court ultimately
found) that defendant “took” the Cadillac without the own-
er’s consent. Relying on Civil and Fuller, defendant argues
on appeal that he nonetheless could not be convicted under
ORS 164.135(1)(a), because he had permission to test drive
the vehicle.
         In Civil, the defendant was working as a driver for a
food company, which involved using a company-owned van.

. The defendant used the van in a man-
ner contrary to what was agreed and failed to return the
van as agreed, which led to his being convicted of violating
ORS 164.135(1)(a). 

 We construed ORS 164.135(1)(a) to be
limited to circumstances where the defendant did not have
custody of the vehicle by agreement with the owner, whereas
ORS 164.135(1)(b) and (c) address circumstances where the
defendant obtained custody by agreement with the owner.

. Because the defendant in Civil gained cus-
tody of the van by agreement with the owner, it was essen-
tially a mistake to charge him under ORS 164.135(1)(a). 

. He could not be convicted under subsection (a), which
was the only subsection under which he was charged, so it
was error to deny his MJOA. 

. Similarly, in Fuller,
the defendant was convicted of violating ORS 164.135(1)(a)
based on his driving his half-sister’s car in violation of their
agreement that he could live in the car but not drive it. 

. Because the defendant obtained custody of the
vehicle by agreement with the owner, he could not be con-
victed under subsection (a), which was the only subsection
under which he was charged, and it was error to deny his
MJOA. 

.
          Whether defendant could be convicted of violating
ORS 164.135(1)(a) on the facts of this case is a legal point
that is reasonably in dispute and not obvious. In particu-
lar, it is not at all clear that merely driving a vehicle, with
the owner (or the owner’s agent) present in the vehicle,
constitutes obtaining “custody” or “possession” of the vehi-
cle by agreement with the owner in the sense that those
terms are used in ORS 164.135 and discussed in Civil and
Fuller. Defendant was allowed to test drive the Cadillac, but
Cite as 

 (2022)                               429

he was accompanied and directed by the owner’s agent, D,
at all times until he forced D out of the vehicle. The situ-
ation is sufficiently different from what happened in Civil
and Fuller—which both involved a defendant who had sole
physical custody of a vehicle by agreement with the owner—
that any error in not entering a judgment of acquittal on the
UUV count was not plain. It follows that the court did not
plainly err in not entering a judgment of acquittal on the
robbery count either.
                             MERGER
          In his third assignment of error, defendant argues
that the trial court plainly erred by failing to merge the
guilty verdicts on Counts 1 and 3 into a single conviction for
second-degree robbery. Defendant did not raise that issue in
the trial court, so our review is limited to plain error. The
state concedes that the court plainly erred. We agree and
accept the concession.
          The error is one of law. See State v. Ham, 

, 

 (2019) (“We review the sentencing
court’s determination of whether to merge verdicts for errors
of law.”). Also, the legal point is obvious and not reasonably in
dispute, and the error is apparent on the record. Under ORS
161.067, which governs merger, guilty verdicts must merge
when two crimes are committed against the same victim in
the same criminal episode, and one is the predicate offense
for the other. See Martinez v. Cain, 

, 

 (2020) (guilty verdicts for robbery and attempted aggra-
vated felony murder had to merge, where the robbery was
the predicate offense for the attempted aggravated felony
murder); State v. Postlethwait, 

, 

 (2021) (guilty verdicts for third-degree theft and second-
degree robbery had to merge, where “the theft offense was
the factual and legal predicate for the robbery”). Here, UUV
was the predicate offense for second-degree robbery. It was
therefore plain error not to merge the guilty verdicts, and
we exercise our discretion to correct the error.
          Reversed and remanded with instructions to merge
the guilty verdicts on Counts 1 and 3 into a single convic-
tion for second-degree robbery; remanded for resentencing;
otherwise affirmed.