State v. Spears, 050432456; A132447.
| Decision Date | 12 November 2008 |
| Docket Number | 050432456; A132447. |
| Citation | 223 Or. App. 675,196 P.3d 1037 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Adolph SPEARS, Jr., aka Adolph P. Spears, Jr., Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Peter Gartlan, Chief Defender, and David Ferry, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and M. Ann Boss, Senior Assistant Attorney General, filed the brief for respondent.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and CARSON, Senior Judge.
Defendant appeals a judgment of conviction for first-degree theft, ORS 164.055(1), assigning error to the denial of his motion for judgment of acquittal (MJOA) on that charge.1 Defendant contends that the state failed to present legally sufficient evidence that he succeeded in "taking, appropriating, obtaining or withholding" the property, arguing that the evidence was sufficient only to prove an attempted theft. The state responds that, when defendant removed five boxes of computers from inside a trailer and concealed them behind the trailer's wheels he "took" the property for purposes of the theft statute, ORS 164.015. As explained below, we conclude that for purposes of the crime of theft, a person who acts with the requisite intent "takes" the property of another when he or she moves that property, however slightly. Consequently, we affirm.
We review the denial of an MJOA to determine whether, after viewing the facts in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved 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).
Viewed consistently with that standard of review, the record establishes the following material facts. Central Freight Lines is a freight moving facility in Multnomah County. When freight arrives at the facility, it is transferred either directly to a delivery unit for final delivery, or to "trap trailers" where it is stored until the appropriate time to move it to a final delivery unit.
On Friday, April 22, 2005, a shipment of computers arrived at the facility and was transferred into one of the trap trailers for storage until final delivery, scheduled for the following Monday. At around 6:00 the next morning, employees at the facility discovered a hole in the perimeter fence, which was then temporarily repaired.
Shortly after midnight on Sunday morning, April 24, two Portland police officers were called to the facility after employees inside the warehouse heard suspicious noises coming from outside. Upon arriving, one of the officers saw a man stepping down from one of the trailers while carrying a box. The officers approached that area, but did not see the man. The officers then looked under several of the trailers with their flashlights, and discovered five unopened boxes containing computers concealed behind the wheels of one of the trailers. As they checked under other trailers, one of the officers spotted the legs of two people under another trailer—and, ultimately, after repeated demands to come out, defendant and another man emerged from beneath that trailer. Defendant was dressed in dark clothes with a dark cap, gloves, and a flashlight; he also had a small cutting tool next to him.
The officers arrested defendant. He was charged with first-degree theft, ORS 164.055(1), and second-degree burglary, ORS 164.215(1).
The officers later found a hand truck sitting next to a hole in the perimeter fence. Central Freight Lines recovered the five boxes of computers, which were valued at just under $8,000. After an inventory of the remaining orders, employees discovered that an additional 22 boxes of computers, with a value of about $21,000, were missing.
The case was tried to the court. At the close of the state's evidence, defendant moved for a judgment of acquittal on both the burglary and theft charges. The trial court granted the MJOA on the burglary charge based on its conclusion that the trailers were not buildings for purposes of the burglary statute. As to the theft charge, defendant argued, inter alia, that the state had failed to prove defendant's requisite "intent to deprive," under ORS 164.015, as incorporated into ORS 164.055(1)(a).2 ORS 164.015 provides, in part:
(Emphasis added.)
Although the trial court rejected defendant's arguments regarding the sufficiency of the evidence of defendant's intent,3 the court was concerned with whether the state's evidence established only an attempted theft. Accordingly, the court, sua sponte, invited the parties to present arguments on the meaning of "takes" and whether the evidence was sufficient to prove that element. Defendant argued that the evidence was sufficient to prove, at most, an attempted theft. The state remonstrated that the evidence was sufficient to show a completed theft because Oregon's theft statute does not require asportation—and, if it does, the property need not actually be removed from the owner's premises, so long as defendant "obtained," "appropriated," or "withheld" the property.
The trial court initially denied defendant's MJOA on the theft charge, reasoning that, regardless of the five boxes of computers found under the trap trailer, an additional 22 boxes of computers were missing from the facility—and the factfinder could circumstantially infer that defendant was involved in those thefts.
During closing argument, defendant renewed his argument that the state had failed to prove a completed theft. The trial court then revisited its rationale for denying the MJOA and determined that it could not find defendant guilty beyond a reasonable doubt of theft of the other missing 22 boxes of computers. Given that determination, the trial court gave the parties additional time to research the degree of asportation, if any, required by the theft statute in relation to the five boxes that had been moved from inside the trap trailer to under that trailer. The parties agreed that the issue was one of first impression and were unable to identify any Oregon case law on point.
The trial court, relying on asportation cases in other jurisdictions, concluded that the slightest movement was sufficient to complete a theft under the statute:
"I'm satisfied that the defendant completed the theft when he removed the boxes from the place where they had been placed by the owner, namely, the trailer, and placed them into another location where they would be concealed from immediate view in furtherance of his effort to remove the stolen property from the premises on which he was apprehended[.]"
The trial court consequently found defendant guilty of first-degree theft and second-degree criminal trespass, a lesser-included offense of the burglary charge.
On appeal, defendant challenges only the theft conviction, renewing his contention that the "takes" element under the theft statute, ORS 164.015, cannot be satisfied by only minimal movement of the property. Rather, defendant asserts, minimal movement of personal property, which is still on the owner's premises, constitutes only attempted theft. The state responds that defendant's contention is unpreserved and, in all events, fails on the merits. We reject the state's preservation argument but agree that defendant's challenge fails on the merits.
We begin by addressing whether defendant's contention on appeal is preserved. The state asserts that defendant's present contention is not reviewable, because defendant, in response to the trial court's inquiry, never proposed an alternative interpretation of "takes" for purposes of ORS 164.015. Defendant contends that the matter is preserved because he contended during colloquy on the MJOA, and again in his closing argument, that the circumstances in the instant case did not constitute a completed theft. We agree with defendant that the matter is preserved.
As we have consistently reiterated, our determination of whether a contention is preserved for our review is guided by the principles prescribed in State v. Wyatt, 331 Or 335, 15 P.3d 22 (2000). Specifically, was the trial court sufficiently, specifically alerted to the pertinent error so as to permit the court "to consider and correct the error immediately, if correction is warranted"? Id. at 343, 15 P.3d 22. Or, as we phrased the pragmatic inquiry in State v. Rumler, 199 Or.App. 32, 41, 110 P.3d 115 (2005), "[i]f we were to reverse based on [appellant's] argument, would the trial judge feel `blindsided' by our ruling?" (Internal quotation marks omitted.)
Here, the answer to the latter question is clearly "no"—indeed, it was the trial court itself that raised the question as to the proper meaning of "takes." We note, further that our obligation to correctly construe that statutory term is in no way impaired or constrained by defendant's failure to advance the proper—or, indeed, any—construction of the statute before the trial court. See Stull v. Hoke, 326 Or. 72, 77, 948 P.2d 722 (1997) (). Thus, the issue is preserved for our review.
We turn to the merits of defendant's appeal—and, specifically, the meaning of "takes" in the theft statute, ORS 164.015. Again, that statute provides, as pertinent:
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State v. Roberts
...because the court, rather than defendant, raised the issue." Id. at 711-15, 288 P.3d 974. See also 291 Or.App. 131 State v. Spears , 223 Or. App. 675, 680-81, 196 P.3d 1037 (2008) (concluding that defendant's argument on appeal was preserved where the trial court raised the issue sua sponte......
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...burned or otherwise disposed of at the quarry, Down had already completed the commission of the predicate offense. See State v. Spears, 223 Or.App. 675, 699, 196 P.3d 1037 (2008) (defining degree of asportation required to commit theft by taking). That conclusion comports with our decisions......
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