Submitted on November 27, 2012.
Polk County Circuit Court 10P3205 William M. Horner, Judge.
Peter Gartlan, Chief Defender, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.
Following a bench trial, defendant was convicted of burglary in the first degree, ORS 164.225, theft in the first degree, ORS 164.055, and two counts of criminal mischief in the second degree, ORS 164.354. Those charges stemmed from a burglary of a storage facility during which items were stolen and the facility was damaged. On appeal, defendant argues that the state presented insufficient evidence to show that he was present "at the scene of the burglary" and that the trial court therefore erred in convicting him of the burglary and criminal mischief charges. We conclude that the evidence was sufficient to support the convictions and, accordingly, affirm.
Because defendant's assignments of error challenge the sufficiency of the state's evidence to support his convictions, we state the facts in the light most favorable to the state. State v. Boone, 213 Or.App. 242, 244, 160 P.3d 994, adh'd to as modified on recons, 215 Or.App. 428, 169 P.3d 1274 (2007). On the morning of March 23, 2010, the owner of a Falls City storage facility reported to the Polk County Sheriff's Office that the facility had been burglarized during the night. Specifically, a locked gate in the fence surrounding the property had been cut with bolt cutters and left ajar, padlocks securing eight mini-storage units had also been cut (and one unit door was damaged), and one unit had been entered and searched. The owner then notified the tenant of that unit, Morgan, who confirmed that a substantial amount of his property was missing.
At approximately 1:00 p.m. that same day, in connection with an unrelated incident, McMinnville police searched a backpack found in the trunk of defendant's car and discovered items that were later determined to have been stolen from Morgan's storage unit. That evening, a Polk County sheriff's deputy searched defendant's residence in Grand Ronde pursuant to a warrant on an unrelated case and found property that "didn't fit, " including "female jewelry, crosses, [and] diamond rings."
Defendant later told two deputies that some of the jewelry found in his residence had come from the burglary of the storage facility in Falls City. Defendant maintained, however, that he was not present at the scene of the burglary. Instead, according to defendant, he and a friend, Ridenhour, agreed that Ridenhour would commit the burglary and that defendant would then store the stolen property for Ridenhour in exchange for some of it. However, when police asked defendant where he was on the night of the burglary, defendant gave conflicting statements regarding an alibi. Defendant was subsequently charged with eight counts of first-degree burglary, one count of first-degree theft, one count of second-degree theft, and two counts of second-degree criminal mischief.
At trial, Morgan testified regarding the amount of property that had been stolen from his storage unit:
"[MORGAN]: [The owner] came by that morning and told me that I needed to get over to the storage unit, it appeared somebody had broken into them and he wanted me to look in my unit and see if anything was missing. And as soon as I opened my unit up, it had all been stacked, boxed up[;] * * * it had been literally moved from one side of my unit to the other side of my unit. I'm talking five or six hours in this unit. There's no way * * * that people could have just gone in there, looked through a few things and left. This was a--they went through everything.
"[PROSECUTOR]: So, a lot of boxes, a lot of things in there?
"[MORGAN]: A lot of boxes, a lot of--so much stuff that there--yeah, they needed a truck. Forgive me. They needed a truck, sir. Because they took [a radio-controlled] car from my daughter this big, you're not going to carry that ...