State v. Bowen

• Decision Date: 31 August 2016
• Docket Number: A153995 (Control), A153997
• Citation: 280 Or.App. 514,380 P.3d 1054
• Parties: State of Oregon, Plaintiff–Respondent, v. Jason Matthew Bowen, Defendant–Appellant.
• Court: Oregon Court of Appeals

280 Or.App. 514

380 P.3d 1054

State of Oregon, Plaintiff–Respondent,

v.Jason Matthew Bowen, Defendant–Appellant.

A153995 (Control), A153997

Court of Appeals of Oregon.

Argued and submitted April 21, 2015.

August 31, 2016

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.

TOOKEY, J.

In this consolidated criminal appeal, defendant appeals two judgments of conviction, raising multiple assignments of error.¹ We write only to address defendant's first, second, and seventh assignments of error, and reject his remaining assignments without discussion.

In his first and second assignments of error, defendant argues that the trial court erred by denying defendant's motions for judgment of acquittal on two counts of identity theft (Counts 3 and 4). In his seventh assignment of error, defendant argues that the trial court plainly erred by failing to sua sponte instruct the jury that 10 or more jurors needed to concur on whether defendant was guilty of each count as a principal or as an aider and abettor. For the reasons that follow, in case number 20–12–18630, we reverse Count 3; reverse and remand Counts 1 and 2; remand for resentencing; and otherwise affirm. In case number 20–13–03790 we affirm.

I. WHAT CONSTITUTES A “TRANSFER” FOR PURPOSES OF ORS 165.800(1)

We begin with defendant's first and second assignments of error, in which he asserts that the trial court erred when it denied his motions for judgment of acquittal on two counts of identity theft. Both assignments of error present the same legal question—whether the trial court's rulings were based on a proper interpretation of the term “transfers” in ORS 165.800(1). “A trial court's interpretation of a statute is reviewed for legal error.” State v. Thompson , 328 Or. 248, 256, 971 P.2d 879, cert. den. , 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999). See State v. Ritter , 280 Or.App. 281, 380 P.3d 1160 (2016) (where a trial court's denial of a motion for judgment of acquittal centers on the meaning of the statute defining the offense, the issue is one of statutory interpretation). After we settle the legal issue of the proper interpretation of the term “transfers” in ORS 165.800(1), we view “the evidence in the light most favorable to the state” to determine whether a “rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt.” State v. Paragon , 195 Or.App. 265, 267, 97 P.3d 691 (2004)(citing State v. Rose , 311 Or. 274, 281, 810 P.2d 839 (1991) ). In accordance with that standard, we state the facts in the light most favorable to the state. Id .

A. Factual Background

The victim returned from running errands on July 31, 2012, to discover that someone had broken into his house in Lane County and stolen property worth about $30,000, including a credit card and jewelry. The victim had been away from his house for roughly 45 minutes. When he arrived home, the victim noticed that the back door of his house was “all busted up,” his belongings were “scattered all over,” and his safe had been broken into. The victim reported the crime at 12:03 p.m.

That same day, at about 12:00 p.m., defendant, accompanied by Seaward, made a purchase at a Kohl's store with the credit card that was stolen from the victim's home. In completing the purchase, defendant swiped the credit card at the sales counter. At 12:56 p.m., defendant, still accompanied by Seaward, sold some of the jewelry that had been stolen from the victim's home to a business called Gold Buyers. At 3:27 p.m., defendant and Seaward entered a Macy's department store and picked out some items. Defendant left the store as Seaward was purchasing the items with the victim's stolen credit card. Seaward completed the purchase by swiping the credit card at the sales counter. At 5:15 p.m., defendant sold more of the stolen jewelry to a second-hand store called Your Place. Two days later, on August 2, defendant sold more of the victim's jewelry at Eugene Coin and Jewelry.

In case number 20–12–18630, defendant was charged with one count of burglary in the first degree (Count 1) and one count of aggravated theft in the first degree (Count 2) for the break-in and theft of items from the victim's home, two counts of identity theft (Counts 3 and 4) for the use of the victim's credit card at Kohl's and Macy's, and two counts of first-degree theft (Counts 5 and 6) for selling jewelry that had been stolen from the victim's home to Gold Buyers and Your Place. In case number 20–13–03790, defendant was charged with one count of first-degree theft for selling more of the victim's jewelry to Eugene Coin and Jewelry.

The first identity theft charge, Count 3, alleged that defendant, “did unlawfully, with the intent to deceive or defraud, transfer personal identification of [the victim] at the Kohl's store.” Count 4 alleged that defendant, “did unlawfully, with the intent to deceive or defraud, transfer personal identification of [the victim] at the Macy's store.” At trial, defendant moved at the close of the state's case for judgment of acquittal on the identity theft charges. Defendant disputed the meaning of the term “transfers” in the identity theft statute, ORS 165.800(1).² Defendant argued that the “dictionary talks about transfer being defined as conveying or taking over legal title or right. And I submit that the evidence does not support a transfer in this case. A swiping [of a credit card] * * * is a use of a credit card, not a transfer.” The state countered that, when a person swipes a credit card as part of a transaction, “an electronic system conveys over the particular credit card number * * * into an account billing system, then that is a transfer. It's not just a—some arbitrary swipe.”³

The trial court denied defendant's motion for judgment of acquittal, stating that “a person commits the crime of identity theft if that person transfers to the person's own use” the credit card of another person. It ruled that “the evidence suggests that that's exactly what defendant did. He transferred to his personal use the credit card number of the victim and he used it to buy things with it.” Additionally, at the close of trial, defendant renewed his motion for a judgment of acquittal without further argument and the trial court denied the renewed motion for the same reason that it had denied the earlier motion.

A jury found defendant guilty of all of the charged crimes. In case number 20–12–18630, the jury found defendant guilty of burglary in the first degree (Count 1), aggravated theft in the first degree (Count 2), two counts of identity theft (Counts 3 and 4), and two counts of first-degree theft (Counts 5 and 6). The convictions on Counts 5 and 6 were merged with the conviction on Count 2, aggravated theft in the first degree. In case number 20–13–03790, defendant was found guilty of one count of theft in the first degree, and that conviction was also merged with the conviction for Count 2, aggravated theft in the first degree, in case number 20–12–18630.

On appeal, defendant renews his argument that the legislature did not intend the term “transfers,” as it is used in ORS 165.800(1), to include tendering a credit card of another in the course of making a purchase. The state responds, contending that the plain meaning of the word “transfer” in ORS 165.800(1), read in the greater context of the statute, reveals that the legislature intended that the term “transfers” would cover such an unauthorized use of another person's credit card.

B. Statutory Interpretation of “Transfers” Under ORS 165.800(1)

As noted above, “a trial court's interpretation of a statute is reviewed for legal error.” Thompson , 328 Or. at 256, 971 P.2d 879. When we interpret a statute, “[w]e ascertain the legislature's intentions by examining the text of the statute in its context, along with relevant legislative history, and, if necessary, canons of construction.” State v. Cloutier , 351 Or. 68, 75, 261 P.3d 1234 (2011) (citing State v. Gaines , 346 Or. 160, 171–73, 206 P.3d 1042 (2009) ).

We start with the statutory text because it is “the best evidence of the legislature's intent.” PGE v. Bureau of Labor and Industries , 317 Or. 606, 610, 859 P.2d 1143 (1993). ORS 165.800(1) provides: “A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person's own use the personal identification of another person.” The term “transfers” is not statutorily defined so we look to dictionary definitions to ascertain the plain meaning of the term. See Gaines , 346 Or. at 175, 206 P.3d 1042 (using dictionary definitions to discern the plain, natural, and ordinary meaning of terms).

We first review the various dictionary definitions presented by the parties. Considering the plain, natural, and ordinary meaning of “transfers” in this case, that term could be interpreted to encompass defendant's conduct. See Websters Third New Int'l Dictionary 2426–27 (unabridged ed. 2002) (defining “transfer” as “to cause to pass from one person or thing to another : transmit”). Under such an interpretation, swiping a credit card would likely constitute a transfer because it would “transmit” the identifying number of a person's credit card account “from one person or thing to another.” Id .

“Transfers” could also be interpreted more narrowly as “to make over or negotiate the possession or control of (a right, title, or property) by a legal process usu. for a consideration[.]” Id . Furthermore, “transfer” is defined by Black's Law Dictionary 1636 (9th ed. 2009), as “to...