Argued and Submitted February 26, 2014
Deschutes County Circuit Court. 10FE1057AB. Roger J. DeHoog, Judge.
Ingrid A. MacFarlane, Senior Deputy Public Defender, argued the cause for appellant With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jamie Contreras, Assistant Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, Rebecca M. Auten, Assistant Attorney General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge.
HASELTON, C. J.
[264 Or.App. 602] Defendant, who entered a conditional plea of guilty, ORS 135.335(3), for first-degree theft, ORS 164.055 (2009), amended by Oregon Laws 2013, chapter 24, section 11, appeals the resulting judgment. She assigns error to the trial court's denial of her motion based on ORS 131.515 and Article I, section 12, of the Oregon Constitution to dismiss on
former jeopardy grounds. In particular, defendant contends that a prior prosecution (in Multnomah County) of a single charge of first-degree theft involving a gold wedding band belonging to the victim bars this subsequent prosecution (in Deschutes County) for charges of first- and second-degree theft and aggravated first-degree theft involving several pieces of the victim's jewelry, including the ring that was the subject of the Multnomah County prosecution. For reasons that we will explain, we reject defendant's statutory challenges, but accept the state's concession that we remand this case to the trial court so that it may determine whether two counts in the Deschutes County prosecution arose out of the same criminal episode as the theft of the gold wedding band. Accordingly, we vacate and remand with instructions.
The following facts are undisputed. During the early summer of 2010, defendant and her family stayed in the victim's home in Deschutes County for several days. Thereafter, the victim discovered that eight pieces of her jewelry were missing. On July 16, 2010, defendant sold one of those pieces of jewelry-- viz., a gold wedding band--to a pawn shop in Multnomah County. Two other pieces of the victim's jewelry-- viz., a tourmaline ring and a jade ring--were recovered from defendant's home in Multnomah County. Although the remaining pieces of jewelry were not recovered, at some point, defendant told a Deschutes County sheriff's deputy that she had stolen and then sold, traded, or disposed of those pieces of jewelry in Multnomah County.
[264 Or.App. 603] On September 7, 2010, defendant was indicted in Deschutes County on one count of aggravated first-degree theft, ORS 164.057 (Count 1), five counts of first-degree theft, ORS 164.055 (2009) (Counts 2 to 6), and three counts of second-degree theft, ORS 164.045 (Counts 7 to 9). Each count allegedly occurred " between or about the 16th day of June 2010 and the 12th day of July 2010." Although Count 1 alleged the theft of " jewelry" generically, each of the remaining counts identified a particular piece of jewelry to which that count related. As pertinent here, Count 2 related to a " gold ring with tourmaline gem stone," Count 3 related to a " gold ring with jade gem stone," and Count 9 related to a " gold wedding band."
On September 24, 2010, defendant was indicted in Multnomah County for one count of first-degree theft for selling the victim's gold wedding band--that is, the property that was also the subject of Count 9 of the Deschutes County indictment--and she pleaded guilty to and was sentenced for that offense in February 2011.
Thereafter, relying on ORS 131.515, defendant moved to dismiss all charges in Deschutes County on former jeopardy grounds. The gravamen of defendant's motion was that defendant had already been " prosecuted and convicted for the act and ...