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holding that a court should only overturn precedent that is "plainly wrong"—"a rigorous standard, satisfied only in exceptional circumstances"
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A158212
01-11-2017
STATE of Oregon, Plaintiff-Respondent, v. Joseph Richard CIVIL, Defendant-Appellant.
John Evans, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General.
John Evans, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General.
Before Duncan, Presiding Judge, and DeVore, Judge, and Haselton, Senior Judge.
HASELTON, S.J.Defendant appeals a judgment of conviction of one count of unauthorized use of a vehicle (UUV), ORS 164.135, entered after a bench trial. He asserts that, although he was charged with UUV solely under ORS 164.135(1)(a), the evidence at trial related only to ORS 164.135(1)(c) —and, because of that asymmetry, he was entitled to acquittal. Central to defendant's challenge is his assertion that State v. Cox , 96 Or.App. 473, 772 P.2d 1385, rev. den. , 308 Or. 315, 779 P.2d 618 (1989), in which we construed the scope of ORS 164.135(1)(a), "was wrongly decided and should be overruled." For the reasons that follow, we conclude that our essential reasoning in Cox was so fundamentally flawed as to render that holding "plainly wrong." Accord Farmers Ins. Co. v. Mowry , 350 Or. 686, 697–98, 261 P.3d 1 (2011) (addressing considerations pertaining to adherence to stare decisis with respect to statutory construction); State v. Olive , 259 Or.App. 104, 107–08, 312 P.3d 588 (2013) (applying "plainly wrong" standard with respect to court's precedent construing statute). Accordingly, we reverse.
ORS 164.135(1) provides, in part:
"(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 * * * without consent of the owner; [or]
"* * * * *
"(c) Having custody of a vehicle * * * pursuant to an agreement with the owner thereof whereby such vehicle * * * is to be returned to the owner at a specified time, the person knowingly retains or withholds 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."
Defendant's challenge, as raised during closing argument in a trial to the court, was, albeit not explicitly so denominated, in the nature of a motion for judgment of acquittal. See, e.g. , State v. Hawkins , 280 Or.App. 26, 29, 380 P.3d 979 (2016) ; State v. Habibullah , 278 Or.App. 239, 242 n. 1, 373 P.3d 1259 (2016). Consequently, we state the material facts in the light most favorable to the state. State v. Markwell , 281 Or.App. 196, 197, 383 P.3d 285 (2016).
In early January 2014, defendant started working as a "driver" for Farm Fresh Foods, which was in the business of door-to-door meat sales. According to Farm Fresh's local warehouse manager, Talsma, "product is given to drivers on consignment, and * * * they pay a daily truck charge [of $20], like a sublease on the vehicles." Typically, drivers would come to the warehouse in Milwaukie in the morning, inventory would be loaded into freezers in the vehicles (either trucks or vans), and invoices would be issued. Vehicles were scheduled to be returned to the warehouse at the end of the day, between 8:00 and 9:00 p.m.—and, in all events, "no later than 10[p.m.], and definitely not overnight."
Defendant was described in the record, without contradiction, as an "independent contractor." But see RJ Enterprises LLC of Oregon v. DCBS, 255 Or.App. 439, 298 P.3d 567 , rev. den., 354 Or. 148, 311 P.3d 525 (2013) (affirming administrative determination that "drivers" who marketed, sold, and delivered the inventory of a frozen meat and seafood distributor were "subject workers," not independent contractors, for purposes of workers' compensation premium assessment).
On the morning of April 15, 2014, defendant contacted Talsma about the possibility of working as a driver that day. Another driver, McClure, had just called to tell Talsma that his vehicle had broken down, so Talsma told defendant that he "could work with [McClure] that day." Specifically, Talsma had a vehicle (a van) fully loaded at the Milwaukie warehouse and released the van to defendant with instructions, and on the understanding, that defendant would pick up McClure at his home in Northeast Portland and that he and McClure would work together that day. Defendant was aware that he was to return that van to the warehouse that evening.
Defendant did not, however, pick up McClure, much less work with him in making meat sales that day. Nor did defendant return the van that night. Instead, the van was found abandoned, but undamaged, five days later, in a parking lot in Happy Valley, several miles from the Milwaukie warehouse. Most of the meat inside was spoiled and unsalvageable.
Defendant was charged by indictment with one count of UUV and one count of theft in the second degree, ORS 164.045. The UUV count (Count 1) alleged:
"The defendant, on or about April 15, 2014, in Clackamas County, Oregon, did unlawfully and knowingly
take, operate, ride in, and/or exercise control over a vehicle, without the consent of the owner, Farm Fresh Foods."
The operative allegation replicates the applicable text of ORS 164.135(1)(a). See 283 Or.App. at 396 n. 1.
The matter was tried to the court. After the submission of the evidence, substantiating the facts recounted above, the prosecutor, in his initial closing argument, summarized the state's theory of "unauthorized use":
"[T]he sole authorization for [defendant] was to use the vehicle to go pick up a coworker. He's driving all over town that day * * * and obviously never returns the vehicle.
"* * * The vehicle's only discovered several days later. His initial use beyond not picking up the coworker was unauthorized, but his unauthorized use continued."
The prosecutor explicitly referred to Cox , describing its facts, and concluded:
"I think [the circumstances in Cox ] are clearly analogous to this. And like I said, I think his use was technically unauthorized the moment he didn't pick up [McClure], but then he continued to go about possession of the vehicle."
Defense counsel, in closing, asserted, inter alia , that defendant must be acquitted because the evidence established, at most, unauthorized use under ORS 164.135(1)(c ) (emphasis added)—which had not been pleaded in the indictment:
"[T]aking the case most favorable to the State, the State has * * * mispled.
"* * * * *
"Subsection (c) is saying, having * * * custody of a vehicle * * * pursuant to an agreement with the owner * * * whereby such vehicle is to be returned to the owner at a specified time, the person knowingly retains or withholds 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.
"* * * * *
"And the State has pled it under (1)(a). So even if this Court does believe that there was some sort of criminal conduct on behalf of [defendant], the charging instrument
doesn't address what subsection that conduct would come under."
Defense counsel concluded by reiterating that subsection (1)(c) was the pertinent provision but that "the State hasn't pled it in that manner." The court then observed, "True. They're stuck with what they pled." Defense counsel did not address Cox in closing.
Finally, in rebuttal closing, the prosecutor characterized defendant's contention as "simply a red herring." Instead, he reiterated that "[defendant] clearly used the vehicle or operated it, or exercised control over it without consent of the owner in this case in a number of ways over a number of days."
The court adjourned to "take a look at [the] authorities" and, upon reconvening, noted that it had "read the cases and the [UUV] statute and * * * analyzed the facts in detail." The court then, without further comment, found defendant guilty of UUV.
The court found defendant not guilty of second-degree theft, observing, "I just don't find that there was specific evidence of intent to commit theft of the meat that was in the vehicle."
On appeal, defendant renews his contention that the evidence related only to ORS 164.135(1)(c), and not to ORS 164.135(1)(a), and that, because he had been charged only under the latter, he was entitled to an acquittal. Defendant acknowledges that Cox is to the contrary, in that it construed ORS 164.135(1)(a) so broadly as to encompass his conduct, but asserts that our statutory construction analysis there was so deficient that Cox must be overruled. In support of that contention, defendant offers a detailed deconstruction of the text, context, and legislative history of ORS 164.135.
Defendant also assigns error to one aspect of his sentence. That matter was rendered moot by the trial court's subsequent entry of a corrected judgment, ORS 138.083.
The state responds that, although our holding in Cox antedated PGE v. Bureau of Labor and Industries , 317 Or. 606, 859 P.2d 1143 (1993), its analysis anticipated PGE and "faithfully reflected the text of ORS 164.135(1)(a) and tracked the stated purpose of [that] provision," including by reference to pertinent commentary. Consequently, the state asserts, defendant has failed to demonstrate that Cox was incorrectly decided—much less "plainly wrong," as required for this court to overrule its precedent—and, thus, Cox is dispositive.
And, of course, State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009).
Before engaging with the parties' contentions regarding the construction of ORS 164.135(1)(a), it is not only useful, but essential, to address two threshold matters. First , precisely what was the holding in Cox ? That is, what did Cox hold—and not hold? Second , what types of "unauthorized use" were substantiated in this record? That is, does the record disclose that defendant's use of the van violated the terms of his agreement with the owner beyond the failure to timely return the vehicle, as described in ORS 164.135(1)(c) ? The resolution of those two inquires will, in turn, define the relationship of Cox to the present dispute—and, even more particularly, inform whether, or to what extent, our statutory construction in Cox can be deemed "plainly wrong" as applied to these circumstances.
We turn to Cox , with the preface of reiterating the pertinent text of ORS 164.135(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 * * * without consent of the owner ;
"(b) Having custody of a vehicle * * * pursuant 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, * * * the person intentionally uses or operates it, without consent of the owner, for the person's own purpose in a manner constituting a gross deviation from the agreed purpose; or
"(c) Having custody of a vehicle * * * pursuant to an agreement with the owner thereof whereby such vehicle * * * is to be returned to the owner at a specified time, the person knowingly retains or withholds 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."
The present text of ORS 164.135(1) is—except for gender-neutral revisions, see Or. Laws 2007, ch. 71, § 50—identical to the originally enacted text, Or. Laws 1971, ch. 743, § 134, construed in Cox.
In Cox , the defendant had worked as an informant for the Eugene police, who were investigating several burglaries, including one in which firearms had been stolen. 96 Or.App. at 475, 772 P.2d 1385. As part of that investigation, the police provided the defendant with a car to drive one of the burglary suspects to a meeting with an undercover officer. Id. The defendant was told that the car was to be used only in connection with the investigation—and "at no time was [the] defendant given permission to take the car outside Eugene." Id. The defendant did, however, "take the car outside Eugene": He drove to Portland, where the car (with the defendant as a passenger) was stopped for speeding. Id. at 476, 772 P.2d 1385.
The defendant was charged with UUV under ORS 164.135(1)(a), with the indictment alleging that the defendant
"did unlawfully and knowingly, having a [vehicle] rented by the * * * Eugene Police Department pursuant to conditions that the defendant could operate the vehicle only in the Eugene, Oregon area and for purposes designated by the Eugene Police Department, did thereafter take the vehicle outside of Eugene and use it beyond the conditions of that agreement, without the consent of the * * * Eugene Police Department, the owner of the vehicle[.]"
Id. (internal quotation marks omitted). Thus, the unauthorized use charged in Cox pertained exclusively to a geographic/spatial deviation from the parties' agreement—and not to temporal deviation within the explicit purview of ORS 164.135(1)(c).
The state's brief as respondent in Cox acknowledges that the car in that case "was not to be returned to the police by a specific time." Respondent's Brief at 7 n. 3, State v. Cox, 96 Or.App. 473, 772 P.2d 1385 (1989) (CA A49180) (Respondent's Brief).
The defendant unsuccessfully demurred, arguing that subsection (1)(a) was inapposite, because, as explicitly alleged in the indictment, he had possession of the car with the consent of the Eugene Police Department. Id. at 475, 477, 772 P.2d 1385. On appeal, the defendant renewed his contention:
"[The] Defendant challenges the indictment on the ground that the crime under subsection (1)(a) only occurs when a vehicle is taken without any consent and not when its use merely exceeds the scope of permission, as it did here. He contends that, because subsections (b) and (c) apply to specific situations where consent was initially given and then abused, subsection (a) applies only when possession was obtained illegally. Alternatively, he argues that, even if subsection (a) does apply
where permission was initially given and then exceeded[,] the requirement of a ‘gross deviation’ from the initial consensual use should be implied from subsections (b) and (c)."
The defendant in Cox advanced that argument on grounds, and in terms, strikingly similar to those urged by defendant here. See Appellant's Opening Brief at 9-13, State v. Cox, 96 Or.App. 473, 772 P.2d 1385 (1989) (CA A49180) (Appellant's Brief) (referring to statutory context, commentary, and history, including derivation from New York Revised Penal Law § 165.05). For example, the defendant there contended that the state's construction of subsection (1)(a) as "apply[ing] not just to defendants who lack all permission, but also to those whose acts exceed the bounds of the permission given,"
"would render subsections (b) and (c) meaningless and superfluous, for the offenses they describe would necessarily be included within subsection (a). Moreover, it would leave unexplained why the later subsections took care to require a ‘gross deviation’ from the agreement. By the state's thinking, any deviation would, in the language of subsection (a), be ‘without consent’ of the owner.
"Indeed, the State's position would make criminal that which otherwise would be only a breach of contract. It might make it a felony for a bailee to exceed the speed limit if the owner had told him to ‘drive safely,’ or for a bailee to omit to change the oil when the owner had instructed him to perform this task before driving."
The state remonstrated:
"According to [the] defendant, because ORS 164.135(1)(b) and (c) deal with situations where the initial taking is consensual, therefore subsection (1)(a) does not. * * * [T]his is not good logic nor is it what the statute says. ORS 164.135(1)(b) and (c) simply cover two situations which include an initial agreement: an agreement to repair; and an agreement to return a vehicle ‘at a specified time.’ The statute does not say or imply that any other conceivable use beyond the scope of an initial agreement falls outside the statutory prohibition. Under [the] defendant's reading of the statute, it would not cover someone who takes a car for a test drive, with no specific return time, and is next seen with the car hundreds of miles away. Neither the language, history, nor interpretation of the statute leads to this absurd result."
Respondent's Brief at 7.
Neither brief in Cox referred to the discussions and deliberations of the Criminal Law Revision Commission relating to the promulgation of ORS 164.135.
Id. at 477, 772 P.2d 1385 (footnote omitted).We summarily rejected that challenge. Our analysis and holding reads in its entirety as follows:
"[The] Defendant's arguments are contrary to the statutory language and legislative history. ORS 164.135(1)(a) states that a crime is committed when a person, without consent, ‘takes, operates, exercises control over, rides in or otherwise uses another's vehicle * * *.’ [The] Defendant's reading of the statute ignores every verb except ‘takes.’ If the legislature had intended to limit the statute to nonconsensual takings when no permission was ever given, it would not have used the other, more inclusive verbs. The commentary to the statute confirms this:
" ‘This section covers the "joy-riding" type of offense where the actor makes unauthorized use of another's vehicle but without the intent to steal it or permanently deprive the owner of its use. The purpose of the language, "takes, operates, exercises control over, rides in or otherwise uses," is to prohibit not only the taking or driving of another's vehicle without permission but, also, to prohibit any unauthorized use of the vehicle.’ Commentary to Oregon Criminal Code of 1971, 177 (1975 ed.)."
Id. at 478, 772 P.2d 1385 (first emphasis added in Cox ; second emphasis original to quoted Criminal Code commentary).
See Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 134, 142 (July 1970) (Commentary).
In so holding, we did not address either the contextual relationship between subsections (1)(b) and (c) and subsection (1)(a) or the balance of the pertinent Criminal Code commentary (discussed below, see 283 Or. App. at 407, 388 P.3d at 1192). Nor did our opinion engage with the defendant's contentions that to construe subsection (1)(a) so broadly as the state urged would render criminal even minimal (non-"gross") deviations from agreed use. See 283 Or.App. at 402 n. 8.
Still—and contrary to the present parties' apparent shared understanding—Cox did not hold that subsection (1)(a) encompasses temporal deviations from agreed use and, thus, subsumes the circumstances described in subsection (1)(c). As noted above, the deviation from agreed use charged, and at issue, in Cox was geographic/spatial, not temporal. Accordingly, we had no occasion to consider whether, much less hold that, subsection (1)(a) applies to circumstances in which a person has custody of a vehicle pursuant to an agreement with the owner but fails to return the vehicle within the time specified in their agreement.
Further, to so construe subsection (1)(a)—rendering subsection (1)(c) substantively and functionally superfluous—would violate fundamental, statutorily prescribed principles of construction. See ORS 174.010 ("In the construction of a statute * * * where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all."); ORS 174.020(2) ("When a general and particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a greater intent that is inconsistent with the particular intent."); accord State v. Stamper , 197 Or.App. 413, 418, 106 P.3d 172, rev. den. , 339 Or. 230, 119 P.3d 790 (2005) ("[W]e assume that the legislature did not intend any portion of its enactments to be meaningless surplusage."); State v. Guzek , 322 Or. 245, 268, 906 P.2d 272 (1995) ( "[W]hen one statute deals with a subject in general terms and another deals with the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, while giving effect to a consistent legislative policy.").
And, by parity of reasoning, subsection (1)(b).
See also Smith v. Board of Parole, 268 Or.App. 457, 465–66, 343 P.3d 245, rev. den., 357 Or. 550, 357 P.3d 503 (2015) (noting that, if one statute were construed as "embod[ying] an omnibus entitlement to subpoena witnesses" in all proceedings before the board, such a construction would render explicit statutory provision for such authority with respect to parole revocation proceeds "superfluous"); Filipetti v. Dept. of Fish and Wildlife, 224 Or.App. 122, 129, 197 P.3d 535 (2008) (noting that, "if plaintiffs' proposed construction were correct, then [statutory language] would be meaningless—or, at least, gratuitous").
In sum, in cases of deviation from authorized use in which the only deviation proved is temporal—that is, retention or withholding of possession beyond the "specified time"—ORS 164.135(1)(c) controls exclusively, and ORS 164.135(1)(a) is inapposite. In such circumstances, a defendant charged under ORS 164.135(1)(a) would be entitled to a judgment of acquittal. See, e.g. , State v. Medina , 357 Or. 254, 267, 355 P.3d 108 (2015) ("The state is limited to the substantive allegations in the indictment.").That construction implicates, in turn, the second of the two threshold inquiries framed above: What type, or types, of deviation from agreed use did the state's proof substantiate? If that proof pertained solely to a temporal deviation, then, however "gross" that deviation, defendant would be correct that, by charging him solely under ORS 164.135(1)(a), the state "mispled"—and, because, as the trial court observed, the state was "stuck with what they pled," see 283 Or. App. at 399, 388 P.3d at 1188 he would be entitled to a judgment of acquittal. If, however, the state's proof substantiated deviation from agreed use other than, or in addition to, temporal deviation, then, assuming adherence to Cox , the nontemporal deviation would be culpable under subsection (1)(a), and the denial of the motion for judgment of acquittal must be affirmed because there was some evidence establishing guilt under that provision, as charged.
We emphasize in this context that defendant's assignment of error is that "the trial court erred when it failed to acquit defendant of the charge of UUV." Defendant did not object at trial to the state's presentation of evidence pertaining to temporal deviation as being immaterial given the allegations of the indictment. Nor did defendant move to strike such evidence. Consequently, no claim of evidentiary error was raised and preserved.
We note further that, in rendering its verdict, the trial court did not elaborate on the factual basis of that verdict—that is, whether it was based on the state's proof of temporal deviation, proof of other, nontemporal deviations from the agreed use, or both. See 283 Or. App. at 418, 388 P.3d at 1198.
To be sure, the state did present evidence of defendant's temporal deviation from the agreed-upon time for returning the meat delivery van: Defendant was to return it to the Milwaukie warehouse that evening, but never did so. See 283 Or. App. at 397, 388 P.3d at 1187. But that was not the state's only proof. Rather, the state also presented evidence that defendant deviated from the agreed use of the vehicle by failing to use the van to pick up McClure, the other driver, and to engage in joint sales activities with McClure, using the van. Id.
With that understanding of the evidence at trial and our deconstruction above of Cox 's holding, the dispositive issue here is crystallized: Assuming adherence to Cox , defendant's nontemporal deviations from agreed use were legally sufficient to support a conviction under ORS 164.135(1)(a). That conclusion is patent—unless, as defendant urges, we overrule Cox . We can do so only if we conclude that Cox was "plainly wrong," a rigorous standard grounded in presumptive fidelity to stare decisis . Thus: Were we "plainly wrong" in Cox in holding that, in circumstances in which a person has possession of a vehicle pursuant to an agreement, deviations in use from that agreement (other than those explicitly addressed in ORS 164.135(1)(b) and (c) ) are culpable under ORS 164.135(1)(a) ?
Whatever the ultimate meaning of "plainly wrong," to be "plainly wrong" a holding must first be wrong. As a practical matter, that requires at least some (re)examination of the dispositive substantive issue and our precedent's consideration of that issue, so that we can appreciate the reasoning that led us to the earlier conclusion. To be sure, it may be tempting in some cases to conclude without further inquiry that, given the apparent character and quality of our precedent's published reasoning, it cannot (regardless of its ultimate correctness) be deemed to have been plainly wrong. Nevertheless, that assessment cannot be made, especially in the context of statutory construction, without an appreciation of what we did not address. See Assoc. Unit Owners of Timbercrest Condo v. Warren , 352 Or. 583, 598, 288 P.3d 958 (2012) (in context of reconsidering prior statutory construction, noting that, while the "stability and predictability" that result from stare decisis are prudentially "important values," "[a]t the same time, [the] court has an obligation to reach what we regard as a correct interpretation of statutes and rules"); see also Olive , 259 Or.App. at 109–13, 312 P.3d 588 (engaging in such a comprehensive reexamination).
We grapple with that question below. See 283 Or. App. at 406, 388 P.3d 1192.
Cf. State v. Smith, 277 Or.App. 709, 716–17, 372 P.3d 549, rev. den., 360 Or. 423, 383 P.3d 864 (2016) (noting with reference to "plain error" standard for putative review of unpreserved claims of error, that "consideration of the propriety of plain error review" and consideration of the merits are "innately intertwined," because "it is, after all, impossible to assess whether a proposition is beyond reasonable dispute without at least some evaluation of its merits"); State v. Washington, 265 Or.App. 532, 540, 335 P.3d 877 (2014) (concluding that the holding in State v. Brody, 69 Or.App. 469, 473, 686 P.2d 451 (1984), did not "surviv[e] the Supreme Court's decision" in State v. Owens, 302 Or. 196, 729 P.2d 524 (1986) ).
We return to Cox. As noted, our analysis there was, in some respects, consistent with the template described in PGE and State v. Gaines , 346 Or. 160, 206 P.3d 1042 (2009), in that it emphasized the text of ORS 164.135(1)(a) and referred, by way of legislative history, to one paragraph of the commentary to the 1971 Criminal Code revisions that pertained to subsection (1)(a).See 283 Or. App. at 399, 388 P.3d at 1188.
Nevertheless, our published analysis in Cox was materially incomplete with respect to three fundamental considerations later prescribed in PGE , as amplified in Gaines . First, we did not address the content and function of subsection (1)(a) in the context of the whole statute, including, specifically, subsections (1)(b) and (c). Indeed, we failed to do so notwithstanding that the defendant in Cox had advanced substantial arguments predicated on such contextual consideration. See 283 Or.App. at 402 n. 8. Second, and concomitantly, while, as noted, our opinion in Cox quoted a single paragraph of the Criminal Code commentary relating to subsection (1)(a), it did not acknowledge and engage with the balance of the commentary, including its description of the derivation and function of subsections (1)(b) and (c), which the defendant in Cox explicitly invoked along with the commentary to the predicate New York statute. Third, there is no suggestion in Cox that we had referred to, and considered, the Criminal Law Revision Commission's discussions and deliberations pertaining to the promulgation of ORS 164.135. We address each in turn.
See Appellant's Brief at 10, 12.
As we emphasized in Cox , subsection (1)(a) is phrased broadly as proscribing a range of conduct ("takes, operates, exercises control over, rides in or otherwise uses" a vehicle) "without consent of the owner." In contextual contrast, subsections (1)(b) and (1)(c) pertain to particular circumstances in which the person has "custody of a vehicle * * * pursuant to an agreement with the owner " (emphasis added) and then, without the owner's consent, engages in specific conduct in violation of that agreement. Further, while the latter two subsections prescribe a "gross deviation" condition of culpability for conduct within the purview of those provisions, subsection (1)(a) includes no such qualification. In Cox , we did not address the contextual significance of those patent differences. Cox 's failure to address context is problematic, not because consideration of text in context would, by itself, be dispositive in this case. It would not be—far from it. Rather, consideration of statutory context in its entirety discloses a fundamental ambiguity that would not otherwise be apparent from the text of subsection (1)(a) viewed in isolation: Does subsection (1)(a) represent an omnibus proscription of all unauthorized use, including deviation from use pursuant to an agreement, subject only to exceptions for those circumstances described in subsections (1)(b) and (1)(c)? Or does subsection (1)(a) pertain only to unauthorized use in circumstances in which the owner has never consented/agreed to the defendant's possession of the vehicle, with subsections (1)(b) and (1)(c) describing the only circumstances in which deviations from agreed use are deemed criminal—and then, only if the deviation is a "gross deviation"?
Either construction is defensible as linguistically plausible. One might reasonably wonder why—as a matter of structure and syntax—if the legislature intended subsections (1)(b) and (1)(c) to function as qualified exceptions to an omnibus prohibition in subsection (1)(a), it did not include standard "except as provided in" or "subject to" language in subsection (1)(a). Still, such ruminations are just that—raising, rather than resolving, questions as to controlling legislative intent, questions that inhere in the contextual ambiguity that we did not acknowledge in Cox .
Those portions of the commentary to the 1971 Criminal Code revisions that we did not address in Cox provide some insight. As noted (and quoted) above, see 283 Or. App. at 403, 388 P.3d at 1190, our discussion in Cox highlighted a single phrase emphasized in the commentary's description that "[t]he purpose of" the language employed in subsection (1)(a) was "to prohibit not only the taking or driving of another's vehicle without permission but, also, to prohibit any unauthorized use of the vehicle." Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 134, 142 (July 1970) (emphasis in original). That single, originally emphasized "any unauthorized use" was central to our construction. Cox , 96 Or.App. at 478, 772 P.2d 1385.The balance to the operative commentary first includes a description of "Derivation," which reads as follows:
"Subsection (1)(a) is adapted from Model Penal Code § 223.9 and New York Revised Penal Law § 165.05.
"Subsections (1)(b) and (c) are taken from New York § 165.05, and define offenses that sound of embezzlement, wherein the defendant originally obtains possession or custody legally, but then misuses or withholds the vehicle wrongfully. Subsection (1)(b) would cover the case of a mechanic who unauthorizedly takes a customer's car and uses it for a personal trip. The type of situation that illustrates (c) would be that of a gratuitous bailment in which a person borrows another's car in Oregon for a few hours and then drives it to another state, keeping it there for several months. In each type of case, the conduct must be a ‘gross deviation’ from the agreed purpose of the bailment."
Commentary at § 134, 142. The commentary also included a statement of "Relationship to Existing Law," which, as pertinent here, stated:
"The section is meant to include the kinds of acts covered by [former ] ORS 164.670 [ (1969) ], the existing ‘joy-riding’ statute, as well as conduct such as manipulating, starting or tampering with motor vehicles ( [former ] ORS 164.650 [ (1969) ], [former ] ORS 164.660 [ (1969) ] ). Damaging a vehicle would be covered by the sections on criminal mischief."
All of those statutes were repealed by Oregon Laws 1971, chapter 743, section 432.
Id.
Thus, ORS 164.135(1)(a) and subsections (1)(b) and (c) were derived from different sources. Subsection (1)(a) was derived with substantial modification from both the Model Penal Code section 223.9 and New York Revised Penal Law section 165.05, while subsections (1)(b) and (1)(c) were derived exclusively from—indeed, lifted verbatim from—the New York statute.
Section 223.9 of the Model Penal Code provides, as it did in 1971:
"A person commits a misdemeanor if he operates another's automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle without consent of the owner. It is an affirmative defense to prosecution under this Section that the actor reasonably believed that the owner would have consented to the operation had he known of it."
New York Revised Penal Law Section 165.05 (1971) provided:
"A person is guilty of unauthorized use of a vehicle when:
"1. Knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent; or
"2. Having custody of a vehicle pursuant to an agreement between himself or another and the owner thereof whereby he or another is to perform for compensation a specific service for the owner involving the maintenance, repair or use of the vehicle, he intentionally uses or operates the same, without consent of the owner, for his own purposes in a manner constituting a gross deviation from the agreed purpose; or
"3. Having custody of a vehicle pursuant to an agreement with the owner thereof whereby such vehicle is to be returned to the owner at a specified time, he intentionally retains or withholds 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."
Significantly, the preexisting commentary to the New York statute from which subsections (1)(b) and (1)(c) were derived is explicit that the New York analogs to those subsections, New York Revised Penal Law section 223.9(2) and (3), described the only circumstances in which deviations from agreed use are deemed to be criminally culpable:
"Subdivisions 2 and 3 define offenses of the embezzlement genus, involving excessive misuse or withholding of a vehicle by a person who originally obtained possession or custody thereof legally. In order to exclude frivolous charges, this type of offense has been limited to two kinds of situations [viz ., the repair shop/garage deviation and temporal deviation]. * * * In each type of case, the conduct must constitute a ‘gross deviation’ from the agreement or the agreed purpose of the bailment."
Staff Notes of the Commission on Revision of the Penal Law, Proposed New York Penal Law 355-56 (1964). The Criminal Law Revision Commission was explicitly apprised of the New York commentary in addressing the scope of subsections (1)(b) and (c). Minutes, Criminal Law Revision Commission, July 19, 1968, 3 (Commission Minutes); Tape Recording, Criminal Law Revision Commission, July 19, 1968, Tape 9, Side A (Commission Tape) (colloquy between Sen. John Burns and Project Director Donald Paillette).
There appear to be no reported New York decisions before (or, for that matter, after) the enactment of ORS 164.135 applying New York's UUV statute to deviations from agreed use other than in the circumstances specified in the antecedent analogs of subsections (1)(b) and (c).
As set out above, the Criminal Code commentary, paralleling the commentary to the New York statute, describes subsections (1)(b) and (c) as "defin[ing] offenses that sound in embezzlement, wherein the defendant originally obtains possession or custody legally, but then misuses or withholds the vehicle wrongfully. " (Emphasis added.) That description conforms with contemporaneous Oregon definitions of "embezzlement," including the then-extant (but soon to be repealed) crime of "embezzlement by bailee," former ORS 165.010 (1969), repealed by Or. Laws 1971, ch. 743, § 432. See Medina , 357 Or. at 269, 355 P.3d 108 ("In embezzlement, a defendant is lawfully in possession of property but fraudulently converts it to the defendant's own use."). Conversely, nothing in the commentary suggests that subsection (1)(a) was intended to encompass such "embezzlement"-related conduct; rather, the only such references pertain to subsections (1)(b) and (c).
Still, the commentary's emphasized reference to "any unauthorized use of the vehicle" remains. In Cox , we invoked that language in support of our reasoning that, "[i]f the legislature had intended to limit [subsection (1)(a) ] to nonconsensual takings when no permission was ever given," it would not have employed "other, more inclusive verbs," viz. , "operates, exercises control over, rides in or otherwise uses another's vehicle." 96 Or.App. at 478, 772 P.2d 1385. However, the commentary itself, in language not quoted in Cox but set out above, 283 Or. App. at 403, 388 P.3d at 1190, gives contextual content to subsection (1)(a)'s use of those "more inclusive verbs," as well as, concomitantly, the significance of that emphasized "any ":
"The section is meant to include the kinds of acts covered by * * * the existing ‘joy-riding’ statute, as well as conduct such as manipulating, starting or tampering with motor vehicles * * *."
Commentary at § 134, 142.
In State v. Douthitt , 33 Or.App. 333, 335–37, 576 P.2d 1262 (1978), an en banc decision not referred to in Cox , we relied on that commentary in addressing the scope of the prohibition of ORS 164.135(1)(a) —and, specifically, whether the defendant, who had burgled a vehicle, had "exercise [d] control" over the vehicle for purposes of UUV. The majority concluded that mere unauthorized entry was insufficient: "[T]he new statute requires that the actor manifest an intent to deprive the rightful possessor of possession or to otherwise interfere with the rightful possessor's use of the vehicle, but simply does not cover a naked trespass to the vehicle." Id. at 338, 576 P.2d 1262. The dissent remonstrated that, given the emphasized "any " in the commentary, "exercises control over" should be broadly construed "to cover not only the actual operation of a vehicle without the owner's consent, but also all those acts leading up to or following the actual operation of the vehicle, including the entry of the vehicle." Id. at 339, 576 P.2d 1262 (Johnson, J., dissenting).
In so holding, the majority concluded that, although ORS 164.135(1)(a) encompassed much of the conduct proscribed by former ORS 164.650 (1969), repealed by Or. Laws 1971, ch. 743, § 432, (e.g., "attempts to manipulate any of the levers * * * or sets the vehicle in motion"), it did not incorporate that statute's prohibition against "climbing on or into" a vehicle without the owner's permission. Douthitt, 33 Or.App. at 336 n. 4, 338, 576 P.2d 1262.
Accord State v. Howell, 183 Or.App. 360, 363-66, 51 P.3d 706 (2002) (affirming UUV conviction under ORS 164.135(1)(a), where the defendant was found sleeping in a car parked in a residential garage, with "the title to the car in his pocket and spare keys to the car in his lap"; that evidence was sufficient to support a finding that the defendant "intended to deprive the rightful possessor of possession of the vehicle" (internal quotation marks omitted)); see also State v. Macomber, 16 Or.App. 54, 56–58, 517 P.2d 344 (1973), rev'd on other grounds, 269 Or. 58, 523 P.2d 560 (1974) ("[E]xercise of control is not limited to a moving vehicle, for otherwise it would be largely synonymous with ‘operates' or covered by ‘riding.’ " (Internal quotations marks omitted.)).
Significantly for our purposes, both the majority and the dissent in Douthitt proceeded from the common premise that the meaning of subsection (1)(a) must be ascertained by reference to the antecedent Oregon unauthorized use statutes, referenced in the commentary, which ORS 164.135(1)(a) superseded and from which those provisions were substantially derived. None of those statutes—viz. , former ORS 164.650 (1969), former ORS 164.660 (1969), and former ORS 164.670 (1969)—addressed circumstances in which a person had possession of a vehicle under an agreement with the owner.
E.g., former ORS 164.660 ("[a]ny person who * * * against the will of another or without the consent of the owner of any motor vehicle * * * willfully breaks, injures, or tampers with or removes any part of such vehicle"). The full texts of those former statutes are set out in Douthitt, 33 Or.App. at 36–37 nn. 4–6, 576 P.2d 1262.
In sum, and contrary to our assumption in Cox , the statute's comprehensive identification of the types of conduct constituting culpable UUV, and the commentary's corresponding emphasized "any unauthorized use" language, do not speak to a legislative intention that subsection (1)(a) encompass circumstances in which a person has possession of a vehicle under an agreement with the owner but deviates from that agreement. Rather, it appears that subsection (1)(a) was intended to substantially subsume the prohibitions of the statutory antecedents identified in the commentary, which did not pertain to "embezzlement" of vehicles. Conversely, subsections (1)(b) and (c)—and those provisions alone—define culpability for deviation from agreed use.
We turn, finally, to the legislative history not addressed in Cox . The Criminal Law Revision Commission twice considered the substance of the proposed UUV statute—first, in a subcommittee hearing on April 6, 1968, and later in a work session of the full Commission on July 19, 1968. See Minutes, Criminal Law Revision Commission, Subcommittee No. 1, Apr. 6, 1968, 12-14 (Subcommittee Minutes); Tape Recording, Criminal Law Revision Commission, Subcommittee No. 1, Apr. 6, 1968, Tape 11, Side 2, and Tape 12, Side 1 (Subcommittee Tape); Commission Minutes at 2-3; Commission Tape 9, Side A. The subcommittee discussion was general, confirming the understanding that subsection (1)(a) not only subsumed the then-extant "taking and using" statute (former ORS 164.670 (1969) ), but also prohibited such other conduct as "tampering" addressed in, e.g. , former ORS 164.060 (1969). Subcommittee Minutes, Apr. 6, 1968, 12; Subcommittee Tape 11, Side 2 (comments of Project Director Donald Paillette).
In contrast, the full Commission focused on the proposed, and ultimately adopted and enacted subsection (1)(c). Much of that discussion pertained to the meaning of "gross deviation" and to the distinctions between (a) non-"gross" (and, hence, nonculpable) failure to return a vehicle within the agreed time; (b) "gross deviation" constituting UUV; and (c) retention of the vehicle for so long a time as to transcend "gross deviation," thus constituting larceny and not UUV. See Commission Minutes, July 19, 1968, at 2-3; Commission Tape 9, Side A. In the course of that discussion, Commission members expressed concerns about the prosecutorial discretion under subsection (1)(c), given the ambiguity of "gross deviation," and the need to be circumspect about criminalizing conduct that had previously been only civilly actionable. See, e.g. , Commission Tape 9, Side A (comments of Frank Knight: "We ought to be cautious about making certain kinds of conduct that are not now crimes crimes—on the general theory that one of the things we're trying to do is simplify, rather than create a whole batch of new crimes.").
As noted above, 283 Or. App. at 410, 388 P.3d at 1194, Commission members were apprised of the pertinent New York commentary.
At no point during its discussions and deliberations did the Commission even allude to the possibility that, in circumstances in which possession was pursuant to an agreement, deviations from agreed use could be culpable under subsection (1)(a). Given the expressed concerns about substantially expanding criminal liability under subsection (1)(c) even with a "gross deviation" qualification, the lack of any such discussion is, at least, striking. Indeed, the tenor of the Commission's discussions about subsection (1)(c) is such that, if subsection (1)(a) had been understood to sweep so broadly as to criminalize all deviations from agreed use, beyond those addressed in subsections (1)(b) and (c)—much less to do so without any "gross deviation" qualification—that matter would have elicited substantial discussion. For example, in that event, one might reasonably have expected some discussion as to why the "gross deviation" qualification applied only to the "garage/repair shop" and "temporal" deviations, but no others. In that event, given the totality of the Commission's considerations, one would reasonably have expected comments and questions along the lines of "So, if I give my teenage daughter permission to use the family car to drive to school and back, but, instead, she goes to a friend's house, is she liable for a Class C felony?" But there were none. To recapitulate: Cox 's published consideration of the statutory text in context was, at least, incomplete, and it did not address significant aspects of the operative commentary or any of the Criminal Law Revision Commission's predicate discussions. Given the totality of the foregoing and the dictates of PGE and Gaines , if we were deciding Cox today, in the first instance, we would decide it differently and hold that ORS 164.135(1)(a) does not apply to circumstances in which a person who is in possession of a vehicle pursuant to an agreement with the owner deviates from the agreed use.
To be sure, as a general matter, "[i]nferring legislative intent on the basis of a lack of comment in the legislative history" can be "problematic." Wyers v. American Medical Response Northwest, Inc., 360 Or. 211, 226–27, 377 P.3d 570 (2016). Nevertheless, that assessment is, necessarily, case specific. Here, given the tone and totality of the Commission's discussion, an objectively reasonable "listener" would ascribe significance to that silence. Accord Worldmark v. Dept. of Rev., 20 Or. Tax 149, 155 (2010) (where "[n]othing in the legislative history supports the inference or conclusion that the legislature was embarking on a major change," "[t]his absence of evidence, this ‘dog that did not bark,’ is of significance" in construing amended statute).
Mere disagreement, however, is not—and cannot be—a sufficient justification for overruling precedent. Rather, the prudential principles that undergird stare decisis , as well as practical institutional considerations, require more. Much more. As the Supreme Court explained in Mowry :
"[S]tare decisis is a prudential doctrine that is defined by the competing needs for stability and flexibility in Oregon law. Stability and predictability are important values in the law; individuals and institutions act in reliance on this court's decisions, and to frustrate reasonable expectations based on prior decisions creates the potential for uncertainty and unfairness. Moreover, lower courts depend on consistency in this court's decisions in deciding the myriad cases that come before them. Few legal principles are so central to our tradition as the concept that courts should treat like cases alike, and stare decisis is one means of advancing that goal. For those reasons, we begin with the assumption that issues considered in our prior cases are correctly decided, and the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent. We will not depart from established precedent simply because the personal policy preferences of members of the court may differ from those of our predecessors who decided the earlier case."
350 Or. at 697–98, 261 P.3d 1 (internal citations and footnote omitted). Accord State v. Moore , 247 Or.App. 39, 46, 269 P.3d 72 (2011), rev'd on other grounds , 354 Or. 493, 318 P.3d 1133 (2013), adh'd to as modified on recons. , 354 Or. 835, 322 P.3d 486 (2014) (noting that, in some circumstances, to revisit and repudiate precedent can "subvert public confidence in the integrity of our processes—the ultimate source of any court's authority").
Nor are we oblivious to the hard practical reality that a relatively permissive "culture of reconsideration" can substantially exacerbate burdens of an appellate court, perhaps especially an intermediate appellate court:
"[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him."
Benjamin N. Cardozo, The Nature of the Judicial Process 149 (1921).
Thus: the "plainly wrong" requirement. Nevertheless—and self-evidently—the mere existence of that standard manifests that our adherence to precedent is presumptive, not absolute. While we must not, and do not, "lightly overrule" our precedents, including those construing statutes, Aguilar v. Washington County , 201 Or.App. 640, 648, 120 P.3d 514 (2005), rev. den. , 340 Or. 34, 129 P.3d 183 (2006), we also recognize that, as instructed in Warren , 352 Or. at 598, 288 P.3d 958, "[a]t the same time, this court has an obligation to reach what we regard as a correct interpretation of statutes and rules."
Such revisiting of statutory construction precedent, while necessarily quite rare, usually occurs when our precedent cannot be reconciled with the result that would follow application of a prescribed (or subsequently prescribed) mode of analysis or when we are presented with a qualitatively new, potentially dispositive contention not previously raised and addressed. See, e.g. , Olive , 259 Or.App. at 109-13, 312 P.3d 588 (overruling 1984 decision construing ORS 162.315 (defining crime of resisting arrest), reasoning that our precedent, which antedated PGE , "did not adequately analyze" the statute); Hostetter v. Board of Parole and Post-Prison Supervision, 255 Or.App. 328, 333-38, 296 P.3d 664, rev. den. , 353 Or. 747, 304 P.3d 38 (2013) (reconsidering prior construction of administrative rule where, in the prior case, court had not been presented with contention that the petitioner advanced and had not adhered to usual framework for decision of the controlling issue); accord Warren , 352 Or. at 598, 288 P.3d 958 ("Particularly when we ‘failed to apply our usual framework for decision or adequately analyze the controlling issue,’ we must be open to reconsidering earlier case law." (Quoting Mowry , 350 Or. at 698, 261 P.3d 1.)).
See also State v. Hunt, 270 Or.App. 206, 212, 346 P.3d 1285 (2015) (analysis in intervening Supreme Court decision "does not suggest that our interpretation [of the statute in the precedent], which scrutinized the text and context of that statute, was ‘plainly wrong’ "); State v. Simonov, 269 Or.App. 735, 743, 346 P.3d 589 (2015), aff'd, 358 Or. 531, 368 P.3d 11 (2016) (adhering to statutory construction precedent where state, as appellant, failed to "demonstrate that our prior statutory construction is plainly wrong").
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In some respects, this case is a paradigmatic vehicle for adherence to stare decisis based on considerations of systemic "[s]tability and predictability" so cogently described in Mowry , 350 Or. at 697, 261 P.3d 1. This is not a case in which new arguments are being presented for the first time; rather, as noted above, defendant's essential contentions here were advanced in the briefing in Cox .See 283 Or.App. at 402 n. 8. Further, although the analysis in Cox was incomplete, it did address, at least in part, the statutory text and related commentary. See generally Mastriano v. Board of Parole , 342 Or. 684, 692, 159 P.3d 1151 (2007) ("The absence of a PGE -style examination of legislative intent does not deprive a prior statutory interpretation of its ordinary effect as a precedent.").
We uniquely appreciate the demands of this work and that almost any appellate decision, especially when deconstructed a generation later, can be deemed "incomplete" or otherwise wanting. Consequently, due regard for stare decisis and our predecessors' collegial commitment demands that "plainly wrong" be a rigorous standard, satisfied only in exceptional circumstances.
This is such an exceptional case. The deficiencies in Cox are fundamental, essential, far transcending pointillistic exegesis or second-guessing. Rather, those deficiencies are apparent with even a basic exploration of the text and context of the statute, let alone its legislative history. Indeed, we respectfully submit that reasoned consideration of the totality of circumstances properly bearing on the construction of ORS 164.135(1)(a) permits only one conclusion: Cox was "plainly wrong," and we overrule that decision.
That holding, in turn, compels reversal of defendant's UUV conviction. As explained above, the state's proof pertained both to a temporal deviation from the agreed use and to other, nontemporal deviations from agreed use. The former is actionable only under ORS 164.135(1)(c) and not (as charged) under ORS 164.135(1)(a), and the latter is not actionable under ORS 164.135, including ORS 164.135(1)(a). Accordingly, the state failed to prove UUV as charged.
Conviction for unauthorized use of a vehicle reversed; otherwise affirmed.