State v. Huffman

• Citation: 227 P.3d 1206,234 Or. App. 177
• Decision Date: 03 March 2010
• Docket Number: A136694.,07040766
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Joseph Boone HUFFMAN, Defendant-Appellant.
• Court: Court of Appeals of Oregon

227 P.3d 1206

234 Or. App. 177

STATE of Oregon, Plaintiff-Respondent, v. Joseph Boone HUFFMAN, Defendant-Appellant.

07040766; A136694.

Court of Appeals of Oregon.

Argued and Submitted June 23, 2009.

Decided March 3, 2010.

COPYRIGHT MATERIAL OMITTED

Ingrid A. MacFarlane, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Pamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Acting Solicitor General.

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and CARSON, Senior Judge.^*

SERCOMBE, P.J.

Defendant appeals from a judgment of conviction on two counts of theft in the first degree (Counts 1 and 2), ORS 164.055 (2005), amended by Oregon Laws 2009, chapter 16, section 3, and one count of giving false information to a peace officer for the issuance or service of a citation or an arrest warrant (Count 3), ORS 162.385 (2005), amended by Oregon Laws 2007, chapter 771, section 1.¹ Defendant assigns error to the trial court's denial of his motion for a judgment of acquittal on all counts and the trial court's failure to merge Counts 1 and 2 under ORS 161.067(3). We reverse as to Count 3 and remand with instructions to merge Counts 1 and 2 and for resentencing.

The following facts are undisputed. On April 3, 2007, a manager at the Costco warehouse in Albany, Oregon, was walking the store floor when he observed defendant from a distance. As the manager moved closer to defendant, the manager noticed defendant had four unopened packages containing digital cameras in his shopping cart. The manager watched defendant walk into an aisle, where defendant removed each camera, the accessories, and the manual from the camera's packaging; put each camera, the accessories, and the manuals into his shirt and pockets; and concealed each camera's discarded packaging behind other merchandise.² Having placed all four cameras in his shirt, defendant then walked around for several minutes before leaving the store.

Outside of the store, the manager stopped defendant to discuss defendant's actions and to request the return of the cameras. Defendant cooperated and returned the cameras, the accessories, and the manuals to the manager. Defendant also accompanied the manager back inside to the store's general office where the manager wrote a report on the incident.

Officer Alexander of the Albany police department was dispatched to the Costco where he spoke first with the manager about the incident. Alexander then spoke with defendant about the incident, after having advised defendant of his rights. Defendant admitted that he was not a Costco member, that he entered the store through the exit door, that he came in initially just to walk around and look, and that, while he was there, he decided to take the cameras. Alexander asked defendant for his name. Defendant replied that his name was "Mark Boone Huffman" and that his date of birth was May 5, 1960. Alexander suspected defendant was not being truthful about who he was, and therefore asked defendant how old he was. Defendant replied that he was "38—I mean, 46."

Alexander advised defendant that he was going to be taken to jail, that he would be fingerprinted, and that Alexander "would eventually determine who defendant really was." While in the officer's patrol car outside the Costco, defendant told Alexander, truthfully, that he was really "Joseph Boone Huffman" and that his date of birth was February 20, 1962. Defendant was ultimately indicted on the three counts indicated above.

Before trial, defendant objected to the state proceeding on two counts for theft in the first degree for the "single act" involving the four cameras. Each of the counts for theft in the first degree was for the theft of two of the digital cameras. The total value of two cameras allegedly exceeded $750, the value required by ORS 164.055(1)(a) (2005) for the crime of first-degree theft. Defendant moved that the state be required to elect one of the counts to proceed on, and the other should then be dismissed. The trial court denied the motion, but stated:

"If there's a conviction for both charges, if the facts are as defendant is representing them to be that essentially these cameras were all taken at the same time as part of the same transaction, there's gonna end up being only one conviction in any event, because there would be a merger most likely required."

At trial, after the close of the state's evidence, defendant moved for a judgment of acquittal on each of the three counts. As to Count 3, giving false information to a peace officer for the issuance or service of a citation or an arrest warrant, defendant argued that there was no evidence to establish that defendant was being questioned as to his identity for the purpose of being issued a citation or for the service of an arrest warrant. As to Counts 1 and 2, theft in the first degree, defendant argued that, based on the testimony of the manager as to the price of the cameras, no trier of fact could find beyond a reasonable doubt what the actual register price of the cameras was on April 3.³ The trial court denied defendant's motion, and the jury ultimately found defendant guilty on all counts.

At sentencing, defendant moved that the "two convictions for theft merge * * * based upon arguments that were previously made that this all came out of the same transaction." The trial court found that the convictions for theft in the first degree did not merge, but that the facts in the case required concurrent sentences.

On appeal, defendant makes three assignments of error. First, defendant assigns error to the denial of his motion for a judgment of acquittal on Count 3, giving false information to a peace officer for the issuance or service of a citation or an arrest warrant. Second, defendant assigns error to the denial of his motion for a judgment of acquittal on Counts 1 and 2, theft in the first degree. He contends that there is insufficient proof of the value of the cameras to support the conviction for first-degree theft. Third, defendant assigns error to the failure of the trial court to merge his convictions on Counts 1 and 2 under ORS 161.067(3). We write only to address defendant's first and third assignments of error and affirm without discussion defendant's second assignment of error.

As to defendant's first assignment of error, "we review the denial of a motion for a judgment of acquittal, taking the evidence in the light most favorable to the state and making any reasonable inferences, to determine whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt." State v. Rocha, 233 Or.App. 1, 5, 225 P.3d 45 (2009) (citing State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert. den., 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995)). Defendant argues that the evidence in this case was insufficient to permit a rational trier of fact to find that the state proved every element of the crime of giving false information to a peace officer for the issuance or service of a citation or arrest warrant, ORS 162.385 (2005), because the state failed to prove that defendant knew that his identifying information was being requested for that purpose. The state concedes that the trial court erred in denying defendant's motion on Count 3, because there was no evidence that Alexander ever intended to give defendant a citation, nor was there evidence that Alexander asked defendant for identification for the purpose of issuing a citation. The state also notes that the circumstances in this case did not involve a situation where an officer requested information for the purpose of arresting a person on a warrant. On the record before us, we agree with and accept the state's concession and therefore reverse defendant's conviction on Count 3.

As to defendant's third assignment of error, we review the trial court's ruling on whether to merge defendant's convictions for theft in the first degree for errors of law. ORS 138.220.

"A trial court's findings of historical fact are binding on appellate courts if there is constitutionally sufficient evidence in the record to support those findings. Our function is to decide whether the trial court applied legal principles correctly to those facts. If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion."

State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993) (internal citations omitted).

The "anti-merger" statute, ORS 161.067, provides, in part:

"(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent."

(Emphasis added.) It is undisputed in this case that defendant's conduct involved repeated violations of the same statutory provision against the same victim. However, the parties dispute whether the violations were separated by a "sufficient pause" in defendant's conduct to afford him an opportunity to renounce his criminal intent.

Defendant argues that his convictions for theft in the first degree should have merged under ORS 161.067(3) because the four cameras were taken all at once, without a pause in defendant's criminal conduct sufficient to have afforded him...