Argued and submitted on August 20, 2013.
Clackamas County Circuit Court CR1000464, Kathie F. Steele, Judge.
David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Erin C. Lagesen, 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 Sercombe, Presiding Judge, and Hadlock, Judge, and De Muniz, Senior Judge.
Defendant appeals a judgment of conviction for three counts of first-degree aggravated theft, ORS 164.057, and five counts of first-degree theft, ORS 164.055, raising eight assignments of error. We reject defendant's first seven assignments of error without discussion. In her eighth assignment of error, defendant argues that the trial court erred in failing to grant a judgment of acquittal on one count of first-degree theft (Count 18). As explained below, we reject that contention, too, and therefore affirm.
When reviewing an order denying a motion for judgment of acquittal, we "view the evidence in the light most favorable to the state, giving the state the benefit of all reasonable inferences that may properly be drawn from that evidence, to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt." State v. Miller, 196 Or.App. 354, 356, 103 P.3d 112 (2004), rev den, 338 Or 488 (2005) (citations omitted).
Defendant has known the victim, who was 82 years old during the events relevant to this case, for most of her life. The victim had employed defendant's parents at his dry-cleaning business. After the victim retired around 1993, defendant remained in sporadic contact with him, seeing him a couple of times each year. In 2009, defendant and her husband began to have problems making payments on their house. At around the same time, defendant began to contact the victim on a more frequent basis. She told the victim about her financial difficulties and began to borrow money from the victim in April 2009. The victim carefully documented those initial loans, which were small and ranged from $50 to $700.
In June 2009, defendant asked the victim for help purchasing a car. The victim agreed to loan defendant the money on the condition that his name be put on the car title to secure his loan. Because the victim did not keep enough money in his checking account to pay for the car, defendant accompanied the victim to his bank, where he withdrew $13, 930 from his home equity line of credit (HELOC) and had the bank issue a check to defendant. Defendant used that money to purchase a car, but the victim's name was not on the title.
Before he began to loan defendant money, the victim typically withdrew between $400 and $600 in cash from his checking account every month for living expenses. To that point, he never had made any withdrawals from his HELOC. After the victim loaned defendant money to buy the car, however, a series of additional withdrawals resulted in a total of nearly $70, 000 being taken from the victim's HELOC between June 2009 and January 2010, not including a $30, 000 loan that the victim made to his son in November 2009. The victim had little or no recollection of specific transactions (other than the loan to his son), but he did remember going to the bank with defendant. During each of those bank visits, defendant conducted all business with a teller or manager, generally withdrawing both cash and a check from the victim's HELOC, and picking up the cash and check that bank personnel placed on the counter. While defendant engaged in those transactions, the victim typically discussed golf or other matters with bank personnel several feet away. The victim trusted defendant and signed any documents that defendant asked him to sign. On at least three occasions, a small deposit was made back into the victim's HELOC on the same day as a large amount of money was withdrawn from that line of credit. The first such event occurred on October 13, 2009, when a $15, 000 withdrawal was made from the victim's HELOC and two $200 deposits were made back into the HELOC. Similar transactions occurred in December and January: On December 21, 2009, a $3, 000 withdrawal was made from the victim's HELOC and $100 was deposited back in. On January 11, 2010, a $2, 700 cash withdrawal--the transaction at issue in Count 18--was made from the victim's HELOC and $201.55 was deposited back in. On another occasion in August 2009, a check was written to defendant from the victim's checking account for $2, 500 on the same day that $106.58 was deposited into the victim's HELOC. The victim did not keep a record of those transactions on a ledger, as he had with the smaller $50 to $700 loans that he previously had made to defendant.
A manager from the victim's bank handled some of the transactions described above and testified about the pattern that he saw develop. Defendant would pick up the withdrawal from the victim's HELOC, count the cash, and then give some of the cash back to the manager to redeposit into the victim's HELOC. The manager explained that the vast majority of the cash withdrawn from the victim's account stayed with defendant, who deposited only small amounts back into the victim's HELOC. The manager "pretty clearly" remembered that defendant "would say, 'Look. [Victim], I'm making a payment.' And * * * she would say, 'Can you get two receipts?'" The manager testified that those transactions raised "red flags" for him. The manager testified that those transactions raised "red flags" for him. "I thought it was kinda strange that you would borrow this money, and then, with the money you borrowed, turn around and use it as a payment." He went on to say that he felt "uneasy about the entire transaction" and that it added to his "suspicion that something just wasn't right."
The manager felt that defendant was trying to create the impression that she was making payments toward the victim's account. Indeed, the victim testified that he believed that defendant was at his bank making payments on the debt that she owed the victim as a result of his prior loans to her. When asked about the January 2010 withdrawal at issue in Count 18, the victim testified that he did not remember that transaction or remember authorizing it.
The small deposits back into the victim's HELOC were not the only transactions that occurred on the dates of the large withdrawals from that line of credit. A police officer who later investigated the case testified that, on at least four occasions, deposits were made into defendant's checking accounts shortly after money had been withdrawn ...