State v. Hillenkamp

• Decision Date: 02 March 2005
• Citation: 198 Or. App. 68,108 P.3d 29
• Parties: STATE of Oregon, Respondent, v. Steven James HILLENKAMP, Appellant.
• Court: Oregon Court of Appeals

108 P.3d 29

198 Or. App. 68

STATE of Oregon, Respondent, v. Steven James HILLENKAMP, Appellant.

C011490CR; A120685.

Court of Appeals of Oregon.

Argued and Submitted January 24, 2005.

Decided March 2, 2005.

Andrew S. Chilton argued the cause for appellant. With him on the briefs was Chilton, Ebbett & Rohr, LLC.

Bethany Cunningham, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge,¹ and ARMSTRONG, Judge.

LANDAU, P.J.

Defendant appeals a judgment of conviction for theft in the first degree. He challenges both the sufficiency of the evidence and the fact that the trial court sentenced him, in part, on the basis of facts not found by a jury. We conclude that the trial court correctly concluded that the evidence was legally sufficient, but we vacate the sentence and remand for resentencing.

The relevant facts are not in dispute. Beaverton Patrol Officer Chad Opitz saw a U-Haul truck parked behind a restaurant next to an alley that led to a Home Depot store. Opitz knew from experience that people parked near the alley to be able to walk up to the Home Depot to engage in fraudulent activities there and readily escape. Opitz called in the U-Haul truck license plate number and learned that the truck had been reported stolen.

Opitz contacted the occupants of the truck, all three of whom were in the rear. Defendant was one of the occupants. All three gave Opitz what turned out to be false names. All three were taken into custody on outstanding warrants.

Opitz searched the truck and found $2,616.86 worth of merchandise from Home Depot. There was no sales receipt for the merchandise. There was a "no-receipt" refund receipt for $295.20 that had been issued approximately 20 minutes earlier. Defendant had $294.85 in his possession. Opitz also found a clipboard on which a number of personal papers belonging to defendant were clipped along with approximately 15 different Home Depot receipts from different Home Depot stores in Oregon, Washington, Utah, Colorado, and Idaho. Opitz also found in the truck a black plastic folder that contained three different IDs for defendant, each with an altered ID number.

Opitz contacted Charles Heinrich, the assistant manager at the nearby Home Depot. Heinrich said that he had seen defendant before, when defendant brought certain items to a cashier and attempted to make a no-receipt return for cash using a false ID. When defendant was questioned, he said that the person whose ID he was carrying was outside in a car. Defendant then left with the merchandise. Heinrich explained that, at the time, Home Depot had a policy of allowing up to three merchandise returns for cash without a receipt. After three returns, he explained, the customer would have to obtain a manager's override. He said that, in response to that policy, people used different or altered ID numbers to obtain no-receipt cash refunds without having to obtain manager approval. Heinrich also scanned the items found in the back of the U-Haul truck. All of the items scanned as Home Depot merchandise.

In a trial to the court, defendant moved for a judgment of acquittal on the ground that there was no evidence that the Home Depot merchandise found in the truck actually had been stolen. The state argued that, taken as a whole, the evidence permitted a reasonable factfinder to find beyond a reasonable doubt that defendant had stolen the merchandise. The trial court agreed with the state, denied the motion, and found defendant guilty of theft in the first degree.

Defendant was sentenced the same day. He did not object to the state's recommendation for an upward departure from a presumptive 13-month sentence based on a finding of persistent criminal involvement. The court imposed a sentence of 26 months' incarceration, based on defendant's "persistent involvement in similar offenses." Defendant did not...