Submitted November 22, 2016
County Circuit Court 13CR10601; Carol R. Bispham, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Kristin A. Carveth, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Karla H. Ferrall, Assistant Attorney General,
fled the brief for respondent.
DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge.
Summary: A jury found defendant guilty of first-degree theft,
second-degree criminal trespass, and second-degree criminal
mischief based on evidence that he broke down and sold as
scrap metal an old excavator that he had found on private
property. Defendant appeals the resulting judgment of
conviction and assigns error to the trial court's denial
of his motion for judgment of acquittal (MJOA) as to the
theft and criminal mischief charges, arguing that the state
failed to prove that the excavator had an owner.
Held: The trial court erred by denying
defendant's MJOA because the state failed to adduce
evidence that the excavator was the property of another, an
essential element of both first-degree theft and
second-degree criminal mischief.
on Counts 1 and 4 reversed; remanded for resentencing;
Or.App. 705] DEHOOG, P. J.
found defendant guilty of first-degree theft, second-degree
criminal trespass, and second-degree criminal mischief for
breaking down and selling as scrap metal an old excavator
that he had found on private property. Defendant appeals the
resulting judgment of conviction and assigns error to the
trial court's denial of his motion for judgment of
acquittal as to the theft and criminal mischief charges.
Defendant argues that the state failed to prove that he took
"property from an owner" or that the excavator was,
in fact, the "property of another, " because it
adduced no evidence that the excavator had an owner. We agree
with defendant that the state failed to prove an essential
element of the theft and criminal mischief charges, and we
reverse his convictions on those counts.
defendant's appeal arises from the denial of a motion for
judgment of acquittal, we state the facts in the light most
favorable to the state. State v. Gaines, 346 Or.
160, 162, 206 P.3d 1042 (2009). Defendant and a friend
entered private land without the owner's knowledge or
consent. There they found an excavator, which they
disassembled and later sold as scrap metal. Various
individuals witnessed different aspects of defendant's
activities. First, Larry Coon, a member of a local mining
club, came across defendant while he and his friend were
taking apart the excavator. Coon was familiar with the
property because his mining club had a mining claim on that
land. Coon testified that he knew that the excavator had been
on the property for a long time, but that he did not know who
Deputy Wilcox of the Linn County Sheriff's Office
encountered defendant and his friend at the excavator site
with a large piece of metal loaded onto a flatbed trailer.
Defendant told Wilcox that they were scrapping the metal. He
told the deputy that they had talked to a miner the day
before and that he had given them permission to take the
metal. Wilcox responded by asking both men to leave and
telling them to first remove the metal from their trailer
because they did not have permission to take it.
days later, another deputy, Schrader, came across a trailer
that was stuck in the mud and loaded with [288 Or.App. 706]
what he recognized as a counterweight to an excavator. He
drove to the excavator site and confirmed that it no longer
had its counterweight. The following day, Schrader again saw
the trailer carrying the counterweight, but at a different
location. When the truck pulling the trailer drove off,
Schrader followed it to a scrap metal dealer, B&B Auto
Wrecking (B&B). Once there, Schrader spoke with
defendant, who had been riding in the truck. Defendant told
Schrader that the owner of the land on which he had found the
excavator had given him permission to take the metal, but he
was unable to tell Schrader the owner's name.
than seize the counterweight, Schrader proceeded to scrap the
metal with B&B for $1, 058.40 and logged that sum into
evidence. Schrader later determined that B&B's
records showed that defendant and his friend had been paid
$1, 320.50 for scrap metal that they had sold there a few
testified that, although he had tried, he had been unable to
determine who owned the excavator. He explained that he had
spoken with the owners of the property where the excavator
had been located, ...