State v. Ripka
| Decision Date | 26 May 1992 |
| Citation | 827 P.2d 189,111 Or.App. 469 |
| Parties | STATE of Oregon, Respondent, v. Darren Lee RIPKA, Appellant. (Cases consolidated) CM90-0765, CM90-0204; CA A67701 (Control), CA A67702. |
| Court | Oregon Court of Appeals |
Jad Lemhouse, Brownsville, argued the cause and filed the brief, for appellant.
Thomas H. Denney, Asst. Atty. Gen., argued the cause, for respondent. With him on the brief, were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before RICHARDSON, P.J., JOSEPH, C.J., and DEITS, J., concur.
Defendant seeks reversal of his conviction for theft in the first degree by receiving, ORS 164.015(5); ORS 164.095, or, alternatively, review of his sentence. 1 We affirm.
Defendant was charged with theft of property with a value greater than $500 after being found in possession of a mountain bicycle that had been stolen from a Corvallis sporting goods store. He claimed that he had bought it for $80 from a woman whom he did not know and that he believed the bicycle was worth about $200. The state tried the case on two theories: theft by taking or theft by receiving. His first trial ended in a mistrial. In a second trial, the jury found him guilty of theft by receiving.
Defendant's first assignment of error is that the trial court erred in failing to give his requested instruction that, in order to convict him of theft by receiving, the jury had to find beyond a reasonable doubt that he actually knew or believed that the bicycle was stolen. He relies on State v. Thomas, 13 Or.App. 164, 509 P.2d 446 (1973), where we held that a defendant must have actual knowledge or belief that property is stolen before he can be convicted of theft by receiving, despite the language in ORS 164.095 "knowing or having good reason to know." Although we used "actual knowledge" in determining the required mental state, we do not agree that the case stands for the proposition that giving an instruction which does not include "actual" constitutes reversible error. We held that the statutory language "knowing or having good reason to know" in ORS 164.095 means the same thing as "knowing or having good reason to believe" in former ORS 165.045. The court instructed the jury here that it must find that defendant knew or believed that the property was stolen, not that "having good reason to know" would suffice. The court properly apprised the jury of the culpable mental state that it had to find in order to convict defendant.
We also reject defendant's claim that there was no evidence that he had the requisite mental state. There was evidence from which the jury could have concluded that defendant's story was fictitious and that the value of the bicycle exceeded $500.
Defendant assigns error to the sentence imposed under the guidelines. The trial court determined that he came within grid block 3 E, which has a presumptive probationary sentence. Pursuant to OAR 253-08-005, 2 the court imposed a dispositional departure of a six-month prison term with two years of post-prison supervision. The departure sentence was to be served consecutively to the prison term imposed on defendant's violation of probation on a burglary conviction.
Defendant argues, first, that the ranking of crime seriousness should have been 2 instead of 3. Under the guidelines, if a statutory offense includes a "broad range of criminal conduct," it may be classified. OAR 253-04-002(2). Theft is one such offense. OAR 253-04-002(2); App 3. Theft by receiving is in category 3; theft in the first degree is in category 2.
Defendant's position is that the accusatory instrument charged him with theft in the first degree of property worth more than $500 but gave no additional facts to allege the more serious subcategory of theft by receiving. He contends that that is in violation of ORS 135.711:
"For any felony committed on or after November 1, 1989, the accusatory instrument shall allege facts sufficient to constitute a crime or a specific subcategory of a crime in the Crime Seriousness Scale established by the rules of the State Sentencing Guidelines Board."
Defendant argues that the state's failure to follow ORS 135.711 deprived him of his constitutional right to know the nature of the crime with which he was charged and the possible punishment. Or. Const, Art I, § 11.
The state argues that ORS 135.711 is intended only to require that an accusatory instrument allege facts that are sufficient to notify the accused of the seriousness of the offense charged under the guidelines and sufficient to identify the presumptive sentence for the offense. It contends, however, that the statute does not abrogate the rule of ORS 164.025 3 under which, except for the crime of theft by extortion, all conduct denominated theft constitutes a single offense and may be pleaded simply as theft.
The state is correct that an accusatory instrument may charge theft without specifying the particular kind of theft committed, see State v. Jim/White, 13 Or.App. 201, 508 P.2d 462, rev. den. (1973), and there was evidence from which the jury could find defendant guilty of theft by receiving. However, evidence, as such, cannot be the basis for enhancing a defendant's sentence, if the enhancing circumstance was not alleged. The subcategory circumstance describes the specific conduct with which a defendant is charged and determines the crime severity category. State v. Moeller, 105 Or.App. 434, 439, 806 P.2d 130, rev. dismissed 312 Or. 76, 815 P.2d 701 (1991). The accusatory instrument here did not describe the subcategory of theft by receiving, and it was, therefore, error to rank defendant's conviction in category 3.
However, the error does not require remedial action. State v. Tremillion 111 Or.App. 375, 826 P.2d 95 (1992). Grid blocks 2 and 3 both involve presumptive probationary sentences, and under either the court could impose a dispositional departure sentence of prison incarceration. Defendant argues that, nonetheless, the court erred in the length of the sentence, because it would run consecutively to his prison term after the probation violation. He contends that he could be sentenced to only 90 custody units for a category 2 offense or 120 units for a category 3 offense.
Under the guidelines, consecutive sentences are governed by OAR 253-12-020 4 or, if a departure is involved, by OAR 253-08-007, in conjunction with OAR 253-12-020. OAR 253-08-007 provides:
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State v. Spears, 050432456; A132447.
...that an accusatory instrument may charge theft without specifying the particular kind of theft committed. See, e.g., State v. Ripka, 111 Or.App. 469, 473, 827 P.2d 189, rev. den., 313 Or. 300, 832 P.2d 456 (1992) (relying on Jim/White for that Although we have occasionally relied on Jim/ Wh......
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State v. Thomas
...believed that the bicycles were stolen. That knowledge or belief is an element of theft by receiving. ORS 164.095(1); State v. Ripka, 111 Or.App. 469, 471, 827 P.2d 189, rev. den. 313 Or. 300, 832 P.2d 456 (1992). Among the evidence that defendant presented on the issue was mother's testimo......
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State v. Smith
...State v. Korelis, 273 Or. 427, 429, 541 P.2d 468 (1975) (approving Thomas's construction of ORS 164.095); see also State v. Ripka, 111 Or.App. 469, 471, 827 P.2d 189,rev. den.,313 Or. 300, 832 P.2d 456 (1992) (trial court properly instructed the jury “that it must find that defendant knew o......
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State v. Nelson
...court exceeded the limitations on departures. The limits in OAR 253-08-007(3) do not apply to dispositional departures. State v. Ripka, 111 Or.App. 469, 827 P.2d 189, rev. den. 313 Or. 300, 832 P.2d 456 Defendant next assigns error to the court's denial of his motion for judgment of acquitt......