State v. Barboe

• Decision Date: 07 November 2012
• Docket Number: CRH080518,A143495.
• Citation: 290 P.3d 833,253 Or.App. 367
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Joshua Melvin BARBOE, Defendant–Appellant.
• Court: Oregon Court of Appeals

253 Or.App. 367

290 P.3d 833

STATE of Oregon, Plaintiff–Respondent,

v.Joshua Melvin BARBOE, Defendant–Appellant.

CRH080518; A143495.

Court of Appeals of Oregon.

Argued and Submitted Aug. 31, 2011.

Decided Nov. 7, 2012.

Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Paul L. Smith, Attorney–in–Charge, Collateral Remedies Appeals, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erika L. Hadlock, Senior Assistant Attorney General.

Before ORTEGA, Presiding Judge, and BREWER, Judge, and SERCOMBE, Judge.^*

SERCOMBE, J.

Defendant appeals a judgment of conviction, following a bench trial, for fraudulent use of a credit card, ORS 165.055.¹ He assigns error to his conviction under an aid-and-abet after-the-fact theory of criminal liability, arguing that the trial court erred in convicting him on the basis of conduct that occurred after the crime had been completed. The state concedes that the trial court “articulated an after-the-fact aid-and-abet theory when it explained its verdict” and that Oregon does not recognize such a theory, but contends that defendant failed to preserve that argument for review. Further, the state contends that the claimed error is not plain, and, even if it were, we should not exercise our discretion to correct it. We agree with the state that defendant failed to preserve his argument below, but conclude that, in convicting defendant under an improper theory of liability, the trial court committed legal error apparent on the face of the record. For the reasons set forth below, we exercise our discretion to correct that error, and, in so doing, we reverse defendant's conviction and remand for a new trial.

On appeal from a judgment of conviction, we recount the underlying facts in the light most favorable to the state. State v. Sundberg, 349 Or. 608, 610, 247 P.3d 1213 (2011). On January 4, 2007, defendant was working as a waiter at The Pheasant Cafe & Lounge (The Pheasant). Some days earlier, Chad Mercer had stolen a credit card from Randall Muller, and Muller had not yet noticed that the card was missing. While defendant was waiting tables on January 4, Mercer and defendant's step-cousin, Samantha, entered The Pheasant with another woman and accrued a $32.65 bill at a table serviced by defendant. Mercer paid the bill using the stolen credit card, left defendant a $75 tip, and signed the credit-card receipt using Muller's name rather than his own. Contrary to the restaurant's policies, defendant did not check the signature on the credit card and receipt, nor did he verify the cardholder's identification. Defendant then removed the $75 tip from the till in cash, leaving the restaurant short of cash the next day.

Soon thereafter, Muller's wife noticed a $107.65 charge from The Pheasant on an online bank statement and contacted Muller, who had been out of town and unable to visit the restaurant. After discovering that his credit card was in fact missing, Muller called the police. On January 6, Officer Roberts went to The Pheasant and spoke with defendant. Defendant told Roberts that he distinctly remembered receiving the large tip, as he was “excited” about it, but he initially denied knowing either Mercer or Samantha. After further questioning, defendant told Roberts that he thought “that one of the females' names was Samantha,” but stated that he did not know her last name and “didn't know any information about the other people.” He denied having any knowledge that the credit card was stolen.

Over one year later, on March 12, 2008, Roberts again spoke with defendant regarding the events of January 4, 2007. At that time, defendant maintained his earlier assertion that he did not know that the credit card was stolen when he ran it and received the $75 tip, but openly admitted that Samantha was a relative, stating that he did not think much of the $75 tip because “[i]t was a family thing[,]” i.e., “it's not normal but, I mean, somebody you know comes in, they're going to tip you good.” Defendant confirmed that Mercer was the person who physically handed him the credit card, and told Roberts that he knew Mercer. However, defendant later testified that he was “never even introduced” to and did not know Mercer on January 4, 2007, but rather got to know him during the intervening year. Roberts placed defendant under arrest.

Defendant was charged with one count of second-degree theft, ORS 164.045 (2007), amended by Oregon Laws 2009, chapter 11, section 12, and Oregon Laws 2009, chapter 16, section 2, and one count of fraudulent use of a credit card, ORS 165.055. He elected to try the case to the court and, at the close of the state's case, moved for judgment of acquittal on both charges on the ground that the state had failed to produce sufficient evidence that he “had knowledge that the card was stolen at the time of the transaction.” The trial court denied the motion and ultimately acquitted defendant of the second-degree theft charge but convicted him of fraudulent use of a credit card. In rendering that verdict, the court explained that it found defendant guilty of fraudulent use of a credit card under an aid-and-abet theory because he knowingly failed to disclose Samantha's or Mercer's identities to the police after the crime had been committed-thereby aiding Mercer in escaping arrest. Specifically, in announcing its verdict, the trial court stated:

“Under ORS 161.155, a person is liable as the principal for aiding and abetting, planning or committing a crime. UnderState v. Burney, 191 Or.App. 227 (2003), in that case the Court noted the aid and abet, proof of intent, was to promote or further the commission of a crime under ORS 161.155. Further, the commission of a crime, in that case, essentially appears to be the natural evolution of an accessory after the fact.

“ * * * * *

“Even [ sic ] for the moment that our Defendant here today did not know Mercer—and I'm finding that Mercer did pass the stolen credit card to him—even assuming that the Defendant did not have a legal duty to follow the procedures and identify the credit card holder, and then, when the Defendant learned of the theft and misuse of the credit card and having gained from that theft, knowingly failed then to disclose the information to the police about the case, that was done in the furtherance of the crime, and thus the Defendant aided and abetted the crime of fraudulent use * * *.

“Therefore, the Defendant being motivated by his own self-interest in having received the $75 and protecting his family's participation in the theft, took the step to aid the offender, Mercer in this case, in escaping arrest. I believe that that is primarily used for the fraudulent use of the credit card. So as to count one, the theft, I find you not guilty; and as to count two, for the purposes and reasons just stated, I find you guilty of the fraudulent use of the credit card.”

(Emphasis added.)

Shortly after announcing its verdict, the trial court sentenced defendant and provided both parties with a proposed judgment. After stating that he would “initial and sign it and go ahead and make distribution,” the trial judge asked, “Outside of distribution of the copies, anything else today?” The parties raised nothing further in response.

On appeal, defendant contends that the trial court erred in finding him “guilty of something that is not a crime” when it convicted him of fraudulent use of a credit card based on an improper aid-and-abet after-the-fact theory of liability. In addition, he asserts that his argument regarding the trial court's legally infirm verdict was preserved below as required by ORAP 5.45(1)² and, should we conclude otherwise, alternatively argues that the trial court's legal error constitutes plain error and merits discretionary correction.

As noted, the state concedes that Oregon does not recognize an aid-and-abet after-the-fact theory of criminal liability, and further concedes that “the trial court in this case articulated an after-the-fact aid-and-abet theory when it explained its verdict.” However, the state argues that defendant's assignment of error is unpreserved, as defendant failed to raise it in his motion for judgment of acquittal, failed to raise it during closing argument, and failed to “ somehow alert[ ] the judge to the legal inadequacy of [the aid-and-abet after-the-fact] theory * * *.” (Emphasis in original.) The state further argues that, notwithstanding the trial court's “mistaken reasoning,” the error is not plain and, even if it were, we should not exercise our discretion to correct it. As noted, we agree with the state that defendant's argument was not preserved below; however, as to the state's latter arguments, we disagree and exercise our discretion to address the trial court's verdict as plain error.³

Defendant contends that his assignment of error was preserved below when, during closing argument, defense counsel stated:

“And moreover, [defendant is] under no obligation to discuss the matter with the officer at all. He's got a Fifth Amendment right not to incriminate himself. It would be inappropriate for the Court to convict him on some aiding and abetting theory based on his unwillingness to be entirely forthright with the officer at the first conversation.”

(Emphasis added.) In support of that contention, defendant analogizes closing arguments in the context of bench trials to jury-instruction arguments, citing, inter alia, State v. Andrews, 174 Or.App. 354, 358–59, 27 P.3d 137 (2001), abrogated in part on other grounds by State v. Rutley, 202 Or.App. 639, 644–45, 123 P.3d 334 (2005), aff'd in part and rev'd in part,343 Or. 368, 171 P.3d 361 (2007). In Andrews, this court held that, where a defendant in a bench trial argues that the state is required to prove a particular element of the...