OUJI-CR 5-116

UNAUTHORIZED USE OF VEHICLE - ELEMENTS

No person may be convicted of unauthorized use of a vehicle unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, taking/using/driving;

Second, a vehicle;

Third, by the defendant;

Fourth, without the consent of the owner;

Fifth, with the intent to deprive the owner, temporarily or otherwise, of the vehicle or its possession.

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Statutory Authority: 47 O.S. Supp. 2019, § 4-102 (A).

Committee Comments

This offense proscribes a broad range of conduct with respect to interference with rights of ownership or possession of vehicles. The Court of Criminal Appeals has rejected the contention that this statute constitutes little more than a temporary larceny statute, and thus requires an actual "taking" and "asportation" of the vehicle from the true owner in order to sustain a conviction. In Magness v. State, 1970 OK CR 157, ¶ 8, 476 P.2d 382, 383, the court noted the existence of a conflict of authorities concerning this point, but, construing Oklahoma law, determined to "follow the general rule that the word `or' in penal statutes is seldom used other than as a disjunctive. We find that it is not necessary that the defendant took the vehicle from the actual owner if he drove or used the same without consent with the intent to deprive him of its possession." See also Payton v. State, 1972 OK CR 306, 503 P.2d 570 (defendant's admission that he took car without owner's permission sufficient to sustain conviction under "temporarily" language of statute, regardless of whether defendant intended to return car).

Whether the defendant's conduct in the vehicle in question was sanctioned by its owner is a question of fact to be resolved by the jurors. Frederick v. State, 1975 OK CR 88, ¶ 8, 535 P.2d 708, 710.

Failure to instruct the finder of fact with respect to the lesser included offenses of molesting or tampering with a vehicle, or of joy riding, will not be considered error unless the record reflects evidence which would justify such an instruction. Where the State's evidence demonstrates a direct and uncontroverted taking, using, or driving of a motor vehicle by the defendant, it is not incumbent on the trial court to instruct regarding lesser included offenses. Holt v. State, 1973 OK CR 7, ¶ 5, 505 P.2d 500, 501; Connell v. State, 1972 OK CR 153, ¶ 8, 497 P.2d 1106, 1107; Magness, supra. But see Atterberry v. State, 1976 OK CR 257, ¶ 9, 555 P.2d 1301, 1303-1304 (error to refuse lesser-included instruction where State's proof raised inferences justifying conviction either for unauthorized use or for tampering with a vehicle).

(2019 Supp.)