State v. Wilson

• Decision Date: 02 February 2011
• Docket Number: 07C50549; A140479.
• Citation: 248 P.3d 10,240 Or.App. 475
• Parties: STATE of Oregon, Plaintiff–Respondent,v.Chet Michael WILSON, Defendant–Appellant.
• Court: Oregon Court of Appeals

240 Or.App. 475

248 P.3d 10

STATE of Oregon, Plaintiff–Respondent,

v.Chet Michael WILSON, Defendant–Appellant.

07C50549; A140479.

Court of Appeals of Oregon.

Submitted July 29, 2010.Decided Feb. 2, 2011.

Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.HASELTON, P.J.

Defendant, who was convicted following a bench trial of second-degree theft, appeals. He assigns error to the trial court's determination that he committed second-degree theft by “Aiding or Abetting after the fact.” In particular, defendant contends that, even viewing the evidence most favorably to the state, the theory on which the trial court expressly predicated his conviction was inapposite as a matter of law. We agree with defendant, and, accordingly, we reverse his conviction and remand for further proceedings.

On appeal from a judgment of conviction, we recount the facts in the light most favorable to the state. State v. Andrews, 174 Or.App. 354, 356, 27 P.3d 137 (2001), abrogated in part on other grounds by State v. Rutley, 202 Or.App. 639, 645, 123 P.3d 334 (2005), aff'd in part and rev'd in part, 343 Or. 368, 171 P.3d 361 (2007).¹ Early the morning of September 26, 2007, defendant and his friend, Down, drove to a Plaid Pantry in Salem, on their way to an outdoor party at a local quarry. Defendant, who was driving, backed his vehicle into a parking space on the north end of the parking lot, near where some plastic soda and milk crates were stored. The back “hood” to defendant's trunk was open. Jeffers, the Plaid Pantry employee working that morning, thought that defendant's choice of parking spots was odd because there were plenty of parking spaces available immediately in front of the store.

At the Plaid Pantry, defendant and Down encountered Selvidge, a friend of theirs. Defendant and Down walked into the Plaid Pantry. Down “walk[ed] around” the store, acting “strangely” and “looking directly” at Jeffers. After a few moments, Down went back outside while defendant stayed to purchase beer. While defendant was still inside, Down loaded between 20 and 40 of the plastic crates into the back of defendant's vehicle.² About half an hour after defendant, Down, and Selvidge had left, Jeffers noticed that the crates were missing and called the police.

After leaving the Plaid Pantry, defendant, Down, and Selvidge proceeded to the quarry, where the party was taking place. There, Down unloaded the crates. Down burned a couple of the crates in a bonfire, but kicked most of them into some bushes. Defendant and some other people at the party also used a few of the crates for sitting on.

Salem Police Officer Ramirez, who had interviewed Jeffers at the Plaid Pantry about the theft, encountered defendant, Down, and Selvidge at the quarry about an hour later that same morning.³ Defendant told Ramirez that he did not take the crates and that he did not know that Down had loaded the crates into his vehicle until after they arrived at the quarry. Selvidge confirmed that only Down had loaded the crates into defendant's vehicle.

Ultimately, the state charged defendant and Down with second-degree theft, ORS 164.045 (2007), amended by Or. Laws 2009, ch. 11, § 12; Or. Laws 2009, ch. 16, § 2.⁴ Down pleaded guilty, and defendant opted for a trial to the court. After Jeffers, Ramirez, and Selvidge testified regarding the facts recounted above, Down testified that defendant did not know that he (Down) had stolen the crates and put them into defendant's vehicle. Defendant also testified, stating that he did not know about the crates until Down started unloading them at the quarry.

At the close of the evidence, the trial court directed the parties on how to frame their closing arguments:

“[H]ere's a question I want [the] lawyers to kind of focus on for me. There's kind of two issues as I see it. One * * * was the theft that clearly Mr. Down perpetrated, was that participated in by [defendant] at the outset, either directly or by his kind of passive consent; active or passive I guess. So that's the first one.

“And the second one is * * * whether or not [defendant] actively participated in the theft at the store; once he learned that those crates were in his trunk by, I guess, allowing Mr. Down to put them in the fire or use them for seats or throw them away, even though they were Mr. Down's, is that aiding and abetting such that it makes him guilty of the crime?”

The state responded by contending that defendant was guilty of the second-degree theft, pursuant to ORS 161.155(2)(b),⁵ because he “aid [ed] or abet[ted]” in Down's commission of the crime. In so arguing, the state contended that either defendant's conduct at the Plaid Pantry, e.g., parking on the north end of the Plaid Pantry parking lot near where the crates were stored, or defendant's conduct at the quarry, e.g., allowing the crates to be burned, was independently sufficient to establish his culpability.

Defendant countered that (a) there was reasonable doubt as to whether he had acted either as a principal or as an accomplice while at the Plaid Pantry and (b) defendant's conduct at the quarry, even if he acted at that point with knowledge that the crates were stolen, was legally insufficient to establish culpability for second-degree theft. In particular, in response to the trial court's question regarding defendant's possible accomplice liability based on his conduct at the quarry, defense counsel argued:

“[I]n [the] aid and abet statute, [ORS] 161.155, there's still that important element of intent. [Defendant] would have had to at least intend to help the other guys steal the crates. He has to have had the intent to promote or facilitate the commission of a crime.

“ * * * * *

“ There has to be a conscious objective to take and keep another person's property. [Defendant] just didn't have that conscious knowledge or objective. He learned about the theft, the crime that someone else committed, after the fact. He didn't help the crime and he didn't plan the crime.”

(Emphasis added.)

The trial court, still focusing on defendant's conduct at the quarry, highlighted its concern by positing the following hypothetical:

“THE COURT: Okay. Let me ask you this question, though, and give you this fact pattern. * * *

“ * * * * *

“ * * * [A] friend of mine come[s] to me and say[s], ‘I just robbed a bank. Here's a bag of money. I think I'm going to get caught.’ Or maybe he doesn't even say that. But he just walked up: ‘Here's a bag of money.’ And I decide, even in good faith I say to myself, ‘I don't want to get caught with this stuff.’ So I destroy it, I burn it. Okay?

“Haven't I now aided and abetted a bank robbery by permanently depriving the victim of that money? And I guess that's where I'm coming from is that—* * * let's accept Mr. Down's testimony for the sake of this discussion that [defendant] had no idea that Mr. Down was putting those milk cartons in the back of his car; just flat didn't know it.

“ * * * * *

“Once [defendant] gained that knowledge and he allowed and/or participated in the utilization of those milk cartons, whether it's burning them, throwing them over the side or using them as chairs, isn't that aiding and abetting?”

The following colloquy ensued:

“[DEFENSE COUNSEL]: Your Honor, I would say that it is not. * * *

“ * * * * *

“ There's a separate cause of action for that called theft by receiving that is defined in ORS 164.095. * * *

“ I think that's probably kind of what the Court is getting at; that maybe [defendant] didn't steal the crates but he could have disposed of them, knowing that they were stolen. Well, for a couple of reasons we can't do that. * * *

“ * * * * *

“So we really need to narrow our focus to whether [defendant] unlawfully and knowingly committed theft of crates, and not move into that other statute * * *. * * *

“ * * * * *

“THE COURT: All right. I mean you're arguing that he didn't have knowledge that they were stolen. I mean how could he not know that Mr. Down put those in his car while they were down at the store? I mean they clearly weren't Mr. Down's.

“[DEFENSE COUNSEL]: Well, I think that, yeah, he knew after the fact.

“THE COURT: Right.

“[DEFENSE COUNSEL]: I think you have to have— for theft you have to have had the kind of beforehand knowledge that is intent. * * *

“ * * * * *

“THE COURT: Okay. All right. Let me ask the State; criminal liability for conduct of another person. * * *

“ * * * * *

“ * * * [S]o let's assume that the aiding and abetting * * * is frankly allowing the fruits of the crime, the crates, to be disposed of by burning them or throwing them away. But here's the question to the State. * * *

“ * * * [O]nce [defendant] determined, knew that there were stolen crates in his car, how do I find the intent that by letting them be burned or thrown away that that is the intent to promote or facilitate the commission of the crime?

“[THE STATE]: * * * [T]he theft was for the bonfire. [Down] went, put the crates in the trunk and the theft was to bring those to be burned. So the theft did not end until they were burned in the fire. Once [defendant] knew that [the crates] were in [the trunk] and had knowledge that they were in there, he then made it easier for the commission of the crime because he allowed Mr. Down to take [the crates] out of his car and put them in the fire.

“ * * * * *

“THE COURT: Hang on. Okay. Let me ask this. Let me put myself in [defendant's] situation that I'm driving a car and I have absolutely no idea that my friend has committed a crime. * * * [L]et's say we go into a store and my buddy steals a Snickers bar and I don't know it. But I know he didn't buy or pay for anything in the store...