Argued and submitted on April 25, 2013.
Klamath County Circuit Court 0902276CR Roxanne B. Osborne, Judge.
Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Duncan, Judge, and Nakamoto, Judge.
SCHUMAN, P. J.
Defendant was convicted of first-degree theft, which required the state to prove that the property she was accused of stealing had a value of more than $750. ORS 164.055(1)(a) (2007). On appeal, she argues that the trial court erred in denying her motion for judgment of acquittal. Specifically, she argues that there was insufficient evidence to prove the charges in the indictment, which alleged the theft of "copper wire" worth more than $750. Instead, defendant argues, the trial court relied on the value of the electrical cables and cords containing copper wire, a prejudicial variance between the pleadings and the proof requiring acquittal. We conclude that the evidence was sufficient to prove the charges in the indictment, and we therefore affirm.
In ruling on the sufficiency of the evidence in a criminal case, we must "examin[e] the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt." State v. Cunningham, 320 Or 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995).
On May 14, 2008, a witness observed two men removing electrical cables and extension cords from a construction site in Klamath Falls. The witness later saw defendant arrive at the site in a truck. The two men then loaded the electrical cables and extension cords into the truck and the three left the scene. The witness reported these events to the police, and, after a brief investigation, defendant was arrested and charged with first-degree theft. The grand jury indictment alleged:
"The [defendant] * * * did unlawfully and knowingly, commit theft of copper wire, of the total value of $750 or more, the property of another, said act of defendant being contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon."
Before trial, defendant moved for a continuance due to the recent death of her father. The trial court asked whether defendant would stipulate to the testimony of the witnesses, and defendant raised the issue of the property's value, asserting that the "value of the property was under $150" because "they melted [the electric cables and extension cords] down and that's all they got for the copper [that was sold to a salvage shop]." The motion for a continuance was denied, and a bench trial ensued. The state's case included testimony from the project supervisor of the construction site and from the witness who saw and reported the events. The project supervisor testified that the items taken included four large electrical cables valued at $379 each and six ten-gauge electrical cords valued at $89 each. He described the electrical cables as "large copper conductors" that each weighed between 40 and 50 pounds, were 100 feet long, and one inch in diameter. The cables, he testified, were made of six- or seven-gauge stranded copper wire coated with black rubber insulation with "twist-locks" at each end; the component parts cannot be purchased separately. The six extension cords, the supervisor testified, are also 100 feet long and contain ten-gauge copper wire. The total value of the four electrical cables and six extension cords, the supervisor testified, was $2, 050.
At the close of the state's case, defendant moved for a judgment of acquittal, arguing that the state had failed to provide any evidence that the value of the copper wire within the cables and cords exceeded $750. Further, defendant argued that if the state was attempting to use the electrical cables and extension cords as a basis for finding a property value over $750, it constituted a material variance from the indictment. Defendant explained:
"The grand jury was presented with copper wire. They were not presented with extension cords; * * * they were not presented with large conductors. Some of these items may have copper wire in them, but they've alleged copper wire. There's an absolute ...