Submitted October 10, 2017
County Circuit Court D152847M Suzanne Upton, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Matthew Blythe, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Michael A. Casper, Assistant Attorney General,
fled the brief for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
Summary: Defendant was convicted of theft in the third
degree, ORS 164.043. On appeal, she assigns error to the
trial court's denial of her motion for judgment of
acquittal, arguing that there was a variance between the
charging document and the state's proof at trial as to
the date of the crime. In its charging document, the state
alleged that defendant committed the theft "on or about
July 21." According to the evidence at trial, the theft
occurred on July 19.
The trial court did not err when it denied defendant's
motion for judgment of acquittal. Even if the difference
between the approximate date in the charging instrument and
the actual date proved at trial was a variance, it was
neither material nor prejudicial.
Or.App. 670] AOYAGI, J.
was caught on video stealing a box of hair dye and
subsequently convicted of theft in the third degree, ORS
164.043. On appeal, she assigns error to the trial
court's denial of her motion for judgment of acquittal.
The charging instrument alleged that defendant committed the
theft "on or about July 21." According to the
evidence at trial, the theft occurred on July 19. Defendant
moved for judgment of acquittal, arguing that there was
insufficient evidence that she committed theft on July 21.
The trial court denied the motion. We affirm.
review the trial court's denial of a motion for judgment
of acquittal to determine whether, "viewing the evidence
in the light most favorable to the state, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt." State v. Morgan,
361 Or. 47, 61, 388 P.3d 1085 (2017). We state the facts in
accordance with that standard.
19, a surveillance video camera recorded defendant entering a
grocery store, taking a box of hair dye off the shelf, and
putting it into her bag. Defendant then left the store. She
met some friends outside, including Pearson, and took the
hair dye out of her bag. Defendant and her friends went to
Pearson's house, where defendant used the hair dye to dye
another friend's hair.
manager saw the surveillance video as it was recording and
recognized Pearson as the son of a store employee's
girlfriend. The manager contacted the store employee, who in
turn contacted Pearson's mother. Upon arriving home,
Pearson's mother discovered an empty box of hair dye in
the trash can. She and the store employee went to the store
together and watched the surveillance video; both recognized
defendant. When they returned home, they found defendant in
their driveway, wearing the same clothes and carrying the
same bag as in the surveillance video (which bag she also
later carried at trial). There was black hair dye on the
surface of the driveway.
21, a police officer went to the grocery store to investigate
the theft. He watched the surveillance video [290 Or.App.
671] and attempted to contact defendant. A few weeks later,
another officer read the first officer's report and
viewed the surveillance video. The second officer issued a
citation that mistakenly listed the incident date as July 21.
A misdemeanor complaint was then filed against defendant for
the offense of theft in the third-degree, alleging that the
theft occurred "on or about July 21."
two and one half months before trial, the state provided
defendant with a copy of the date-stamped surveillance video,
which indicated that the theft occurred on July 19. Before
trial, defendant also received a copy of the police report,
which stated that the theft occurred on July 19, and her
attorney attempted to contact a witness identified therein.
About a month before ...