State v. Smith
| Jurisdiction | Oregon |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Johnny SMITH, Defendant–Appellant. |
| Citation | 288 P.3d 974,252 Or.App. 707 |
| Docket Number | 0702246CR; A143661. |
| Court | Oregon Court of Appeals |
| Decision Date | 17 October 2012 |
OPINION TEXT STARTS HERE
Peter Gartlan, Chief Defender, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before SERCOMBE, Presiding Judge, and BREWER, Judge, and EGAN, Judge pro tempore.
Defendant appeals a judgment of conviction for first-degree theft by receiving.1 He assigns error to the trial court's denial of his motion for judgment of acquittal, arguing that the evidence was insufficient to establish that he knew or had good reason to know that the property in question was the subject of theft as required by ORS 164.095(1). 2 We conclude that the trial court did not err in denying the motion and, accordingly, affirm.
We set forth the facts in the light most favorable to the state and review those facts to determine whether a rational trier of fact could have found defendant guilty beyond a reasonable doubt. 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 is in the automotive repair and restoration business. In 2004, he agreed to perform extensive restoration work on a 1978 Corvette belonging to the victim. The parties did not agree on a fixed price for the work. Ultimately, the cost of parts and materials, labor, storage fees, and other expenses amounted to between $8,000 and $9,000. During the course of defendant's work on the Corvette, the victim made several miscellaneous payments to defendant, in addition to giving him several articles of personal property in trade. The parties had a history of trading personal property, and defendant had previously provided services to the victim in exchange for personal property. When defendant delivered the restored Corvette, the victim believed that he was “square” with defendant based on the incremental payments that he had made, the personal property that he had given to defendant in trade, and his perception that defendant's work was deficient. Defendant, on the other hand, believed that the victim still owed him over $4,000.
On May 26, 2006, soon after defendant returned the Corvette, the victim was hospitalized after suffering a stroke. Defendant frequently visited the victim in the hospital and agreed to help the victim sell a number of his motor vehicles along with some of his personal property that was in storage at the time. The victim testified that all of the proceeds were to go to his wife. In addition, the victim spoke with defendant about bringing some of the personal property from storage to a garage sale that his wife was hosting. Still hospitalized, the victim ultimately signed a notarized statement giving defendant permission to sell the vehicles and to speak with particular finance companies on his behalf. Defendant subsequently gathered the vehicles—including the Corvette—and placed them in storage while attending to some of the victim's related affairs.
On July 8, 2006, defendant gained access to a storage unit at the victim's apartment complex and took possession of a used air compressor after telling the apartment manager that the air compressor belonged to him. Defendant further took possession, apparently from one or more different locations where the victim stored personal property, of a generator, a pressure washer, a set of rally wheels and accompanying hardware, and at least one other item belonging to the victim.
The victim was released from the hospital on July 17, 2006. Nearly one year later, the victim reported to the police that his property—specifically the Corvette, a set of four rally wheels and trim rings, a pressure washer, an air compressor, a generator, an acetylene torch set, and a battery charger—was missing. On June 12, 2007, Officer Rhodes spoke with defendant by telephone. Defendant asserted that the victim owed him $7,000 3 and confirmed that he was in possession of the Corvette and the “other property that [the victim] had identified as missing[.]” Defendant admitted that he had not given any money to the victim's wife, nor had he brought anything to the victim's wife for inclusion in the garage sale.
Instead, defendant had installed the rally wheels on the Corvette (which he eventually sold at auction in a lien sale through the Department of Motor Vehicles) and had retained possession of the rest of the personal property to offset some of the remaining debt that the victim allegedly owed him. At the time of trial, defendant confirmed that he was still in possession of the pressure washer, air compressor, generator, and battery charger.
Defendant was charged with, among other things, theft by receiving property “such as a generator, air compressor, pressure washer, acetylene torch set, battery charger and/or rally wheels * * *.” At trial, defendant moved for judgment of acquittal on that charge on the ground that the state had failed to prove that defendant took and possessed those items. The trial court, after further inquiry and an exchange of remarks with the prosecutor, denied the motion. The jury returned a verdict of guilty on the charge of theft by receiving.
On appeal, defendant argues that no rational trier of fact could have found beyond a reasonable doubt that he knew or believed that the items were the subject of theft given (1) his asserted claim to a valid interest in the items stemming from the debt allegedly owed to him by the victim, and (2) his history of trading services for property with the victim. He contends that neither his admission that he was in possession of the property in order to offset the alleged debt, nor his telephone conversation with Rhodes, provided sufficient evidence to support a conclusion that he knew that the property was stolen. Finally, defendant argues that the legislature did not intend that property disputes arising out of contractual or business relationships—in this case the vehicle-repair transaction—be subject to felony theft prosecutions.
In response, the state first contends that defendant's arguments are not preserved as required by ORAP 5.45(1).4 The state then asserts that, even if the arguments are preserved, defendant's argument regarding legislative intent is without merit and the record contains sufficient evidence indicating that defendant knew that the property was the subject of theft. According to the state, the evidence shows that the property at issue was unrelated to the vehicle-repair transaction-having been entrusted by the victim to defendant only for sale to benefit the victim's wife. Consequently, the state argues, defendant retained 5 the property knowing that it was not lawfully his to keep and, in any event, continued to retain it even after Rhodes apprised him that the victim had reported it missing and that it was the subject of a police investigation. Although we conclude that defendant's argument as to knowledge was adequately preserved below, we otherwise agree with the state.6
The issue of the sufficiency of the record to present a jury question on defendant's knowledge was preserved. The state contends that, when moving for judgment of acquittal on the charge of theft by receiving, defendant raised only one argument: “that the state had not submitted evidence showing that the victim's property was actually in defendant's possession.” The state asserts that defendant “made no reference to a lack of evidence about defendant's knowledge, [or] the victim's history of trading equipment for defendant's labor[.]”
Defendant, in moving for judgment of acquittal, indeed failed to raise the argument that he now advances on appeal. Nevertheless, we find that defendant's contention regarding the knowledge requirement was preserved, as the trial court raised the issue sua sponte—in effect recharacterizing the issue and defendant's argument in order to address the theft by receiving charge more specifically—and the state responded at length before the trial court specifically ruled on that issue. After defendant initially moved for judgment of acquittal, the following colloquy took place:
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State v. Roberts
...raised and argued and the purposes of the preservation requirement appear to have been served. For example, in State v. Smith , 252 Or. App. 707, 712, 288 P.3d 974 (2012), rev. den. , 353 Or. 429, 299 P.3d 890 (2013), we held that the defendant's argument on appeal was preserved, even thoug......
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State v. Arnold
...when the court raised the issue sua sponte , even though the defendant "did little to advance that discussion"); State v. Smith , 252 Or. App. 707, 714, 288 P.3d 974 (2012), rev. den. , 353 Or. 429, 299 P.3d 890 (2013) (concluding that an issue was preserved because "[t]he court raised, the......
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State v. Miranda
...first drew the distinction between generalized testimony on false memory and case-specific testimony."); see also State v. Smith , 252 Or. App. 707, 714, 288 P.3d 974 (2012), rev. den. , 353 Or. 429, 299 P.3d 890 (2013) (holding that an issue was preserved where, "given the court's and the ......
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State v. Reyes-Castro
...a specific ruling on the particular argument shows that the court was independently aware of the legal issue. See State v. Smith , 252 Or. App. 707, 714, 288 P.3d 974 (2012) (determining that an issue was preserved where the court ruled on the particular argument after raising the issue sua......