Argued and Submitted, Springfield High School,
Springfield February 12, 2014
Multnomah County Circuit Court, 120747890 Leslie M. Roberts, Judge.
Rond Chananudech, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge. Sercombe, P. J., dissenting.
[265 Or.App. 507] HADLOCK, J.
Defendant appeals a judgment of conviction for possession of a burglary tool--a crime that he was charged with having committed by possessing a burglary tool or theft device " with intent to use it to commit and facilitate a theft by physical taking" in violation of ORS 164.235(1). The tool consisted of multiple spark plugs that had been attached to a handle and " intertwined" in a way that made them suited to breaking car windows. We address a single issue on appeal: whether evidence that defendant possessed that tool, which he believed was illegal to possess, is sufficient to support a finding that he intended to use the tool to commit a theft by a physical taking. We conclude that the evidence of intent is insufficient in this case. Consequently, the trial court erred when it denied defendant's motion for judgment of acquittal. We therefore reverse.
Because we are reviewing the trial court's denial of a motion for judgment of acquittal, we set forth the facts in the light most favorable to the state. State v. Evans, 161 Or.App. 86, 88-89, 983 P.2d 1055 (1999). Two police officers were patrolling Northwest Portland " to try to stop the drug flow, the bicycle thefts, and the car prowling" in that area. One of those officers, Yakots, was familiar with defendant and spotted him standing on a public sidewalk close to the transient camp where he lived. Yakots knew that defendant " associates with car prowlers" and that " where he lives * * * is filled with people who steal bikes and prowl cars." Yakots called out to defendant by name and asked if he could search him. Defendant replied, " Sure, but hang on." Defendant quickly turned and stepped away from Yakots, grabbed an object from his pocket, and threw it under a nearby tarp that was stretched from the top of a chain-link fence over a public sidewalk. Yakots could see the object from where he was standing on the sidewalk and " recognized it immediately" as an " intertwined" tangle of spark plugs attached to a handle, which can be used to break car windows and which, in Yakots's view, has no legitimate use. Yakots took [265 Or.App. 508] defendant into custody and retrieved the spark-plug tool from underneath the tarp.
As noted above, defendant was charged with possession of a burglary tool " with intent to use it to commit and facilitate a theft by physical taking" under ORS 164.235(1). Before trial, defendant moved to suppress the evidence (the tool) that Yakots had obtained by reaching under the tarp. At the hearing on defendant's motion, the trial court heard Yakots testify to the facts described above, and it denied the motion to suppress. The case proceeded to a bench trial immediately after that ruling. The trial court admitted the pertinent evidence from the suppression hearing as evidence for purposes of trial and then heard additional testimony from Yakots, who described the spark-plug tool in more detail, noting that it is " [v]ery, very, very light" --not heavy enough to use as a weapon. Yakots also testified that defendant admitted, after having Miranda warnings read to him, that he had thrown the intertwined spark plugs under the tarp because " they were illegal." The trial court denied a motion for judgment of acquittal
that defendant made at the close of the state's case, and it subsequently convicted defendant of the charged crime.
On appeal, the parties renew the arguments they made below in association with defendant's motion for judgment of acquittal. Defendant acknowledges that the state presented sufficient evidence to establish that the modified spark plugs formed a burglary tool, in that they were " adapted or designed for committing or facilitating a * * * theft by a physical taking." ORS 164.235(2). However, defendant argues, the state failed to produce evidence that he possessed the spark plugs with the intent to use that tool to commit a theft. The state responds that the trial court properly denied defendant's motion for judgment of acquittal because the record contains sufficient evidence from which a factfinder could reasonably infer the requisite intent.
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 [265 Or.App. 509] 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, 113 P.3d 434 (2005) (citations omitted). Our review is not for whether we believe that defendant is guilty beyond a reasonable doubt, but rather whether the evidence is sufficient for a factfinder to have so found. State v. Martin, 243 Or.App. 528, 531-32, 260 P.3d 197 (2011). The state " may rely on circumstantial evidence and reasonable inferences flowing from that evidence" to establish any element of a charged crime, including intent. State v. Bivins, 191 Or.App. 460, 466, 83 P.3d 379 (2004). Moreover, " established facts may support multiple reasonable inferences and, if they do, which inference to draw is for the jury to decide." Id. at 467.
" Whether particular circumstantial evidence is sufficient to support a particular inference, however, is a legal question for a court to decide. 'There is a difference between inferences that may be drawn from circumstantial evidence and mere speculation.' Reasonable inferences are permissible; speculation and guesswork are not. As we have observed before, the line between permissible inferences and impermissible speculation is 'sometimes faint.' The line is also sometimes difficult to articulate with precision. But we agree with the federal courts, which frequently describe it in these terms:
" 'The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion ...