State v. Hunter, 1001007CR; A149292.

• Decision Date: 07 August 2013
• Docket Number: 1001007CR; A149292.
• Citation: 257 Or.App. 764,308 P.3d 266
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Barbara J. HUNTER, Defendant–Appellant.
• Court: Oregon Court of Appeals

257 Or.App. 764

308 P.3d 266

STATE of Oregon, Plaintiff–Respondent,

v.Barbara J. HUNTER, Defendant–Appellant.

1001007CR; A149292.

Court of Appeals of Oregon.

Argued and submitted on May 16, 2013.

Decided Aug. 7, 2013.

Ernest G. Lannet, Chief Deputy Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

ORTEGA, P.J.

Defendant appeals a judgment convicting her of six counts of first-degree aggravated theft. ORS 164.057. She assigns error to the trial court's denial of her pretrial demurrer and alternative motion to dismiss on two of those counts. In particular, defendant asserts that her motion should have been granted because the period of time alleged in Count 1 of the indictment was wholly outside the three-year statute of limitations for aggravated first-degree theft, and “[t]he period of time alleged in Count 2 * * * straddled the statute of limitations.” SeeORS 131.125(7). ¹ As explained below, we agree with defendant with respect to Count 1 and, accordingly, reverse that conviction. As to Count 2, we affirm.

The pertinent facts are procedural and undisputed. On May 13, 2010, a grand jury indicted defendant on six counts of first-degree aggravated theft, alleged to have occurred during a series of six-month periods. Count 1 alleged that defendant, “on or between August 5, 2006 to January 31, 2007, in Klamath County, Oregon, did unlawfully and knowingly commit theft of Cash, of a total of $10,000 or more * * *.” Count 2 alleged that, “on or between February 2, 2007 to July 28, 2007,” defendant “unlawfully and unknowingly commit [ted] theft of Cash of a total value of $10,000 or more * * *.” Defendant filed a pretrial demurrer or alternative motion to dismiss as to those counts, asserting that Count 1 and that portion of Count 2 alleged to have occurred before May 13, 2007, were outside the statute of limitations. As authority in support of her motion, defendant cited ORS 131.105 and ORS 131.125. ²

At the hearing on the motion, defendant asserted that the three-year statute of limitations was applicable and that “the State's allegation in Count 1 and Count 2 of Aggravated Theft in the First degree does not fall within [the exception set forth in ORS 131.125(8) ] because the offense does not have a material element of either fraud or the breach of a fiduciary obligation.” She urged that the state was limited to the face of the charging instrument and that the text of the indictment did not support an exception to the three-year statute of limitations. The state responded that it could “control the statute with [its] theory of the case” and that the “whole case [was] about” fraud. The court asked both parties for legal authority supporting their positions, but neither could provide supporting authority. The court denied defendant's motion and stated that it would “reconsider if testimony warrants.”

Approximately one week after the motion hearing, defendant waived jury trial and the case was tried to the court on stipulated facts. The parties stipulated that defendant had knowingly misappropriated her employer's property by writing checks from the office account for personal expenses, making personal charges on the office credit card, giving herself raises and paying herself unauthorized overtime, taking cash, and paying herself excess medical reimbursements. The parties stipulated that, for each of the six time periods alleged in the indictment, defendant misappropriated in excess of $10,000. Based on the stipulated facts, the court found defendant guilty of the six charged counts of aggravated theft in the first degree.

As noted, plaintiff first asserts on appeal that, “[b]ecause Count 1 was time barred, the trial court should have allowed the demurrer” on that count. (Boldface omitted.) The state agrees that it “had a three-year period within which to commence prosecution for aggravated theft” in the first degree and that the prosecutor's reliance on the part of ORS 131.125, that “allows an extension of the statute for crimes that have as a material element either fraud or the breach of a fiduciary obligation[ ] did not support the extension of the limitations period for a year beyond the discovery of the offense.” (Internal quotation marks omitted.) Thus, because “count 1 alleged only acts that were facially beyond the limitations period”—that is, all the conduct alleged in count 1 occurred before May 13, 2007—“the state agrees that count 1 is subject to dismissal.” (Boldface omitted.) We agree and accept the state's concession. See State v. Ricker, 107 Or.App. 245, 246, 810 P.2d 1356 (1991) (extended limitations period does not apply to theft because it does not contain an element of fraud or beach of a fiduciary obligation). Accordingly, defendant's conviction on Count 1 must be reversed.

Defendant next asserts that the trial court “should have granted the demurrer and alternative motion to dismiss the time-barred portion of Count 2.” (Boldface omitted.) That is, according to defendant, the “indictment [was] insufficient, and subject to demurrer pursuant to ORS 135.630” because the conduct set forth in Count 2 was alleged to have occurred “on or between February 2, 2007 to July 28, 2007,” and so the court should have “responded to [her] demurrer and alternative motion to dismiss by limiting the allegations in Count 2 to the time period that fell within the statute of limitations.” The state responds that “an indictment with dates that straddle a limitations period facially describes an offense that may have occurred within the requisite period” and, therefore, “it is neither subject to demurrer nor to dismissal.” We agree with the state.

In support of her position, defendant relies on ORS 135.630(2). Pursuant to that statute,

“[t]he defendant may demur to the accusatory instrument when it appears upon the face thereof:

“ * * * * *

“(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743.”

ORS 132.540(1)(c), in turn, provides that an indictment is sufficient if it can be understood from it that the “crime was committed at some time prior to the finding of the indictment and within the time limited by law for the commencement of an action therefor.” A court may sustain a demurrer only if the charging instrument is insufficient on its face. See State v. Reed, 116 Or.App. 58, 59, 840 P.2d 723 (1992) (it is error for the court to sustain a demurrer on the basis of facts not alleged in the charging instrument).

In State v. Scott, 48 Or.App. 623, 617 P.2d 681 (1980), we considered the issue that defendant raises in this case. In particular, in the context of a prosecution for “unlawfully obtaining public assistance and theft in the first degree,” we considered the defendant's assertion on appeal that “her demurrer based upon the statute of limitations should have been sustained.” Id. at 626, 617 P.2d 681. In that case, prosecution commenced on November 7, 1977, and, therefore, acts prior to November 7, 1974, were outside of the applicable three-year statute of limitations. However, the indictment charged that the defendant had committed the acts in question “between May, 1974 through November, 1974.” Id. Because part of the time span alleged in the indictment occurred within the applicable limitations period, we concluded that the trial court properly overruled the demurrer:

“ORS 132.540(1)(c) states that ‘(an) indictment is sufficient if it can be understood therefrom that * * * the crime...