State v. Cox

• Decision Date: 31 December 2003
• Citation: 336 Or. 284,82 P.3d 619
• Parties: STATE of Oregon, Respondent on Review, v. Kevin Anthony COX, Petitioner on Review.
• Court: Oregon Supreme Court

82 P.3d 619

336 Or. 284

STATE of Oregon, Respondent on Review, v. Kevin Anthony COX, Petitioner on Review.

CC 98C43653; CA A104550; SC S49495.

Supreme Court of Oregon.

Argued and Submitted September 9, 2003.

Decided December 31, 2003.

Irene B. Taylor, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was David E. Groom.

Laura S. Anderson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, DE MUNIZ, and BALMER, Justices.¹

RIGGS, J.

Defendant was charged in separate indictments in Multnomah County and Marion County with aggravated theft in the first degree, ORS 164.057, for the theft of over $10,000 worth of aluminum. Defendant pleaded guilty to one count of aggravated theft "by receiving" on the Multnomah County indictment. Approximately five months later, the Marion County Circuit Court denied defendant's motion to dismiss the count of the Marion County indictment alleging aggravated theft of the aluminum. Following trial, a jury convicted defendant on that count.

Defendant appealed his Marion County conviction for aggravated theft of the aluminum.² He argued that the second prosecution violated his right not to be placed in jeopardy twice for the same offense under Article I, section 12, of the Oregon Constitution.³ The Court of Appeals affirmed. State v. Cox, 178 Or.App. 426, 37 P.3d 193 (2001). We allowed defendant's petition for review, and, for the reasons set out below, we reverse the decision of the Court of Appeals and reverse in part the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

We take the following facts from the Court of Appeals opinion and the record. Sometime during the night of February 15 and the early morning of February 16, 1998, defendant stole over 20,000 pounds of aluminum from Microwave Tower Service in Marion County. Later in the day on February 16, defendant contacted Metro Metals, Inc., a Portland scrap metal dealer, for the purpose of loading and transporting the aluminum to Portland. On February 17 in Marion County, defendant and an accomplice helped a Metro Metals truck driver load the aluminum onto the driver's truck and followed the driver to Portland. Suspicious about the origin of the aluminum, the driver alerted other Metro Metals employees to the possibility that the aluminum was stolen. Those employees contacted the police, who subsequently arrested defendant and his accomplice.

On February 25, 1998, defendant was indicted in Multnomah County for, inter alia, a violation of ORS 164.057.⁴ Count One of the indictment was entitled "Aggravated Theft in the First Degree by Receiving" and alleged that, "on or about February 17, 1998, in the County of Multnomah, State of Oregon, [defendants] did unlawfully and knowingly commit theft of aluminum, of the total value of $10,000 or more, the property of MICROWAVE TOWER SERVICE[.]" On April 16, 1998, defendant pleaded guilty to that count of the indictment.

On April 6, 1998, after the issuance of the Multnomah County indictment but before defendant's guilty plea, defendant was indicted in Marion County on two counts of aggravated theft and one count of criminal mischief. Entitled simply "Aggravated Theft," the second count of the Marion County indictment also cited ORS 164.057 and alleged that "the defendants on or between 02/16/98 and 02/17/98, in Marion County, Oregon, did then and there unlawfully, feloniously and knowingly commit theft of aluminum metal pipes and beams, of the total value of Ten Thousand Dollars or more, the property of Microwave Tower Service."

Defendant moved to dismiss the second count of the Marion County indictment, arguing that a second prosecution for aggravated theft of the aluminum violated the former jeopardy provision of Article I, section 12. The trial court denied that motion. In September 1998, a Marion County jury convicted defendant on all counts, including the second count of aggravated theft based on the theft of the aluminum.

Defendant appealed, again arguing that the Marion County prosecution violated Article I, section 12. The Court of Appeals affirmed. Cox, 178 Or.App. at 428,37 P.3d 193. Citing State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972), the court perceived the "critical question" to be whether the charges arose out of the same act or transaction. Cox, 178 Or.App. at 430,37 P.3d 193. The court explained that determining whether a defendant's conduct involved the same act or transaction depends in part on whether the defendant's conduct was part of the same "criminal episode." Id. at 431, 37 P.3d 193 (citing State v. Boyd, 271 Or. 558, 566, 533 P.2d 795 (1975)). The court concluded that the two theft offenses were not the same, because "[d]efendant's actions were not contemporaneous or so closely linked in time, place, and circumstance that a complete account of one could not be related without reference to the other" and because "[d]efendant's conduct involved separate acts with discrete criminal objectives." Id. at 432-33, 37 P.3d 193.

Judge Armstrong dissented. He argued that both prosecutions required the state to present evidence about the taking of the aluminum in Marion County, thus satisfying the "cross-relationship" test of Boyd, 271 Or. at 566, 533 P.2d 795. Even if the two charges failed to satisfy the cross-relationship test, the dissent concluded that defendant's actions were a single criminal episode and that only one prosecution was proper. Cox, 178 Or.App. at 437-38, 37 P.3d 193 (Armstrong, J., dissenting).

DISCUSSION

In the present case, both the Multnomah County and Marion County indictments alleged that defendant violated the same statute, ORS 164.057. ORS 164.057 incorporates the definition of theft in ORS 164.015.⁵ To determine whether defendant has been prosecuted twice for the same offense, our initial inquiry focuses on the legislature's definition of theft in ORS 164.015, and we begin with an analysis of that statute.⁶

As noted, ORS 164.015 provides:

"A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person:

"(1) Takes, appropriates, obtains or withholds such property from an owner thereof; or

"(2) Commits theft of property lost, mislaid or delivered by mistake as provided in ORS 164.065; or

"(3) Commits theft by extortion as provided in ORS 164.075; or

"(4) Commits theft by deception, as provided in ORS 164.085; or

"(5) Commits theft by receiving as provided in ORS 164.095."

ORS 164.095 provides:

"(1) A person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.

"(2) `Receiving' means acquiring possession, control or title, or lending on the security of the property."

The parties approach those statutes differently. Defendant argues that ORS 164.015 defines a single offense of theft and that the gravamen of that offense is the deprivation of property, regardless of the means by which such deprivation occurs. Defendant emphasizes that both convictions in this case rested on the deprivation of the same property from the same owner, Microwave Tower Service. The only difference between the two indictments is that the aggravated theft count in Multnomah County alleged "aggravated theft by receiving." Defendant asserts that, under the statute, he committed a single theft offense, for which he could be prosecuted only once consistently with ORS 131.515(1)⁷ and Article I, section 12. Buttressing his interpretation, defendant cites as context ORS 164.025, which provides, in part, that, "[e]xcept for the crime of theft by extortion, conduct denominated theft under ORS 164.015 constitutes a single offense." ORS 164.025(1) (emphasis added).

The state responds that ORS 164.025 is "procedural," in the sense that it addresses only the pleading and proof required to sustain a theft charge. The state points out that the theft statutes provide no definition of "same offense" for purposes of either ORS 131.515(1) or Article I, section 12. Therefore, the state urges, this court should proceed directly to considering the propriety of the successive prosecutions under the "same elements" test used in federal courts, e.g., United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)

(federal court test "inquires whether each offense contains an element not contained in the other"), or under this court's "same act or transaction" test, Brown, 262 Or. at 458,

497 P.2d 1191.

Faced with that dispute regarding the interpretation of ORS 164.015, we apply the methodology of PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Under PGE, we look first to the text and context of the statute at issue to determine the legislature's intent. Id. at 610, 859 P.2d 1143. The first level of analysis includes "other provisions of the same statute and other related statutes," id. at 611, 859 P.2d 1143, and "the preexisting common law and the statutory framework within which the law was enacted," Denton and Denton, 326 Or. 236, 241, 951 P.2d 693 (1998). We also consider "the existing rules of substantive law that are relevant to the statute being interpreted." Osborn v. PSRB, 325 Or. 135, 146, 934 P.2d 391 (1997).

To better understand the text of ORS 164.015, we briefly review the historical context of theft offenses in Oregon. See Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 322 Or. 406, 415-16, 908 P.2d 300 (1995),

modified on recons., 325 Or. 46, 932 P.2d 1141 (1997) (discussing historical context of statute at first level of PGE analysis).

The legislature adopted ORS 164.015 in 1971 as part of an overall revision...