Appeal from Circuit Court, Multnomah County. Berkeley Lent, Judge. No. C-72-09-2777 Cr.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Schwab, Chief Judge, and Foley and Thornton, Judges.
Defendant was convicted of second-degree theft (ORS 164.045) in the district court of Multnomah County. He appealed to the circuit court where he was convicted of the same offense after a jury trial. On appeal, defendant makes three assignments of error: (1) the complaint was deficient because in charging theft without specifying the method by which the theft was carried out, it failed to inform the defendant of the nature of the crime alleged; (2) the state should have been required to elect upon which theory of theft it intended to proceed so that defendant could adequately prepare his defense; and (3) the court erred in instructing the jury that a person is guilty of theft by receiving "if he receives, obtains [sic], conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft."*fn1 (Emphasis supplied.)
At the trial, the complainant, Gary Passmore, testified that on March 28, 1972, at about 7 p.m., he and his family had gone shopping at the Lloyd Center in Portland. He left his locked car in the Center's parking lot with a tape deck and approximately ten tapes in the locked glove compartment. As he was returning to his car about 7:30 p.m., he saw a person closing the passenger door of his car. That person then got into a car parked next to Mr. Passmore's and drove away. The complainant was able to vaguely describe the person, and got the license number and a description of the car. There was a second person in the car whom complainant was unable to describe. When he returned to his car, he saw that the glove compartment had been pried open and the tape deck and tapes were gone. He reported the theft to the police at 7:50 p.m., and gave them the license number and a general description of the thief and his car.
The police officers who took the report testified that at 10:25 p.m. on the same day they stopped a car matching the complainant's description and bearing the same license plates. The defendant was alone in the car, and fit the general description given by the complainant. The officers found the stolen tape deck and several tapes in defendant's car, and a screw-driver with a long, thin blade on the floor of the front seat.
The complainant was unable to identify the defendant as the person he had seen leaving his car. The defendant did not testify at trial, but had answered
questions asked by the arresting officers, and later by the detective. These officers all testified that defendant said that he had had the tape deck for about three months. On cross-examination, the detective testified that the defendant might have said the tape deck was in his car, and that he had owned the car for three months.
The trial judge instructed the jury as to the elements of the crime of theft by reading to them the relevant sections of the statutes; specifically, ORS 164.015 "'Theft' described," and ORS 164.095 "Theft by receiving." The defendant objected to the latter instruction on the basis that it allowed conviction if the jury found that defendant had "good reason to know" the property in his car was stolen, even if they also found that he did not actually know it to be stolen.
The jury interrupted their deliberations to ask the following question: "If a person has a stolen item in his possession and he is not aware that it is stolen, is he guilty of a crime?" Without directly answering the question, the trial judge again read ...