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State v. Stavenjord

Court of Appeals of Oregon

March 7, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ARIANNA MARIE STAVENJORD, Defendant-Appellant.

          Submitted October 10, 2017

         Washington County Circuit Court D152847M Suzanne Upton, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case 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.

         Held: 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.

         [290 Or.App. 670] AOYAGI, J.

         Defendant 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.

         We 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.

         On July 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.

         A store 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.

         On July 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."

         Approximately 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 ...


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