State v. Ricker
| Decision Date | 15 May 1991 |
| Citation | 810 P.2d 1356,107 Or.App. 245 |
| Parties | STATE of Oregon, Appellant, v. Lorin M. RICKER, Respondent. 90-02-1368, 90-02-1369, 90-02-1370; CA A65325 (Control), CA A65326, CA A65327). |
| Court | Oregon Court of Appeals |
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
George W. Kelley, Eugene, argued the cause and filed the brief for respondent.
Before WARREN, P.J., JOSEPH, C.J., and RIGGS, J.
Defendant was charged with two counts of theft I, ORS 164.055, and one count of theft II. ORS 164.045. The three-year Statute of Limitations of ORS 131.125(5) had run. Nevertheless, the state argued that the limitation period was subject to ORS 131.125(6)(a), because the indictment alleged that defendant had breached a fiduciary duty that he owed the victims. Defendant filed a demurrer to the indictment, which the trial court sustained. The state appeals and we affirm.
ORS 131.125(6)(a) provides, in part:
"If the offense has as a material element either fraud or the breach of a fiduciary obligation, prosecution may be commenced within one year after discovery of the offense by an aggrieved party * * * and who is not a party to the offense * * *." (Emphasis supplied.)
In State v. Mills, 77 Or.App. 125, 711 P.2d 207 (1985), we interpreted the "material elements" of a crime to be those elements that must be proved to obtain a valid conviction. 77 Or.App. at 129, 711 P.2d 207. Although the indictment alleges that defendant breached a fiduciary obligation to the victims, a fiduciary obligation is not a material element of the crime of theft, which can be proved without evidence of fraud or breach of a fiduciary duty. Therefore, ORS 131.125(6)(a) does not apply.
Affirmed.
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...first-degree theft because that offense does not contain an element of fraud or breach of a fiduciary obligation); State v. Ricker, 107 Or.App. 245, 246, 810 P.2d 1356 (1991) (same). Thus, the sole basis for satisfying the statute of limitations that is pleaded on the face of the indictment......
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...limitations period by three years, for offenses involving a "material element of fraud," but contends that, under State v. Ricker , 107 Or. App. 245, 246, 810 P.2d 1356 (1991), the fraud extender statute does not apply to the theft charges. Petitioner asserts that, in view of Ricker , reaso......
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State v. Hunter, 1001007CR; A149292.
...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 fi......
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State v. Hunter
...agrees that count 1 is subject to dismissal." (Boldface omitted.) We agree and accept the state's concession. See State v. Richer, 107 Or App 245, 246, 810 P2d 1356 (1991) (extended limitations period does not apply to theft because it does not contain an element of fraud or beach of a fidu......