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State v. Fonte

Supreme Court of Oregon, En Banc

July 26, 2018

STATE OF OREGON, Respondent on Review,
v.
PETER A. FONTE, Petitioner on Review.

          Argued and Submitted March 5, 2018, at Lewis & Clark Law School, Portland, Oregon.

          On review from the Court of Appeals, CC 16CR01505 (CA A161939) [*]

          Erin J. Snyder Severe, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

          E. Nani Apo, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Crystal Maloney, Portland, fled the brief on behalf of amicus curiae Oregon Justice Resource Center.

          Kistler, J., concurred in the judgment and fled an opinion, in which Balmer and Duncan, JJ., joined.

         [363 Or. 328] Case Summary:

         Defendant was charged with "theft by receiving" committed by "selling" under ORS 164.055(1)(c) after he took merchandise-a pair of jeans-to a store employee at a cash register and, giving the impression that he had previously purchased the jeans, "returned" them for money. At trial, the state proceeded on a theory that the jeans were stolen when defendant picked them up with the intent to use them in a fraudulent exchange and that defendant then "dispose[d] of" the jeans-thereby committing "theft by receiving"-and did so by "selling" because he received money for the exchange. Defendant made a motion for a judgment of acquittal following the state's case, arguing that the evidence was not sufficient to prove that he committed theft as it was charged. The trial court denied defendant's motion, and the Court of Appeals affirmed. Held: The legislature did not intend for "theft by receiving" committed by "selling" to include a theft that is both committed by the initial thief of property and committed by fraudulently returning that property to its owner in accordance with the owner's return policy. Thus, the trial court erred in denying defendant's motion for a judgment of acquittal.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

         [363 Or. 329] WALTERS, C.J.

         This criminal case requires us to determine whether defendant committed the crime of theft in the first degree under ORS l64.O55(1)(c)-that is, "theft by receiving" committed by "selling"-when defendant took an item from a store's sales floor, approached a store employee at a cash register, and, giving the impression that he had previously purchased the item, "returned" it for cash. We conclude that that act is not sufficient to establish that crime, and we reverse the contrary decisions of the trial court and the Court of Appeals and defendant's felony convictions. We remand to the circuit court for further proceedings.

         For our purposes, the facts in this case are undisputed. Defendant took a pair of jeans from the sales floor at a department store. He went to a cash register and told the store employee that he wanted to return the jeans, giving the impression that he had previously purchased them. The employee accepted the jeans and handed defendant $124.60 in cash. Defendant returned the next day and repeated the scenario but with a different pair of jeans. That time, he received $151.30 in cash. Defendant attempted to leave the store, but loss prevention personnel stopped and detained him until police arrived.

         The state charged defendant with two counts of first-degree theft under ORS l64.O55(1)(c), one count for each pair of jeans.[1] By the terms of that statute, a person commits the crime of theft in the first degree, a Class C felony, when the theft is "theft by receiving" as defined in ORS 164.015 and is "committed by buying, selling, borrowing or lending on the security of the property." ORS l64.O55(1)(c), (3). ORS 164.015 describes "theft by receiving" by reference to another statute-ORS 164.095. By the terms of that statute, a person commits the crime of "theft by receiving" when the person "receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft." ORS 164.095(1).

         [363 Or. 330] Defendant entered a plea of not guilty and elected to have his case tried to the court. At trial, the state's theory was that defendant had committed theft by receiving when, with a thieving intent, he took the jeans from the sales floor and "dispose[d] of them by relinquishing them to the store employee. And, because defendant received money as a result, the state contended that defendant had "dispose[d] of the jeans by "selling." After the state rested, defendant made a motion for a judgment of acquittal, challenging the sufficiency of the evidence to establish that crime. Defendant did not challenge the sufficiency of the evidence to establish theft. Defendant understood that issue to be controlled by the Court of Appeals decision in State v. Rocha, 233 Or.App. 1, 225 P.3d 45 (2009), rev den, 348 Or. 461 (2010), and conceded that, in light of that decision, he had committed theft when he took the jeans with the intent to use them in a fraudulent exchange.[2] However, defendant argued that his exchange of the jeans for money did not constitute "selling" under ORS 164.055(1)(c), the first-degree theft statute. Defendant contended that store personnel testified that they did not have the authority to "buy" items and that, as a practical matter, the transactions here do not look like sales but rather the "adjusting [of] prior sales." The trial court denied defendant's motion and found defendant guilty on both counts of first-degree theft. In doing so, the trial court noted that it did not view defendant's argument as trivial or frivolous and had long wondered whether the legislature envisioned defendant's conduct to be a felony, further noting the "anomaly" that "the shoplifting itself would be a far lesser crime."

         Defendant appealed his judgment of conviction and assigned error to the trial court's denial of his motion for a judgment of acquittal. Defendant again took aim at the meaning of "selling," which he contended is to transfer property from a seller to a buyer for a price, and argued that he could not be considered a "seller" in his transaction with the employee. Rather, defendant argued, his exchange of the jeans for cash was a "return for a refund," which "reverts [363 Or. 331] a sale" and "is the act of a buyer returning property to the seller for the price paid." Again, defendant did not dispute that he was guilty of theft; however, he argued, the legislature did not intend to punish the conduct in which he had engaged as first-degree theft. In defendant's view, the legislature would have understood defendant's conduct to be misdemeanor theft by deception based not on his disposing of the jeans, but on his acquisition of the cash that he received by creating a false impression that he had previously purchased the jeans. See ORS 164.085(1) (defining theft by deception); ORS 164.045 (theft by deception is a misdemeanor where value of property is between $100 and $1000). The Court of Appeals rejected defendant's argument and affirmed without opinion. State v. Fonte, 285 Or.App. 653, 402 P.3d 784 (2017). Defendant sought review in this court, and we allowed his petition.

         In this court, defendant renews his argument that the evidence was insufficient to establish first-degree theft under ORS l64.O55(1)(c). Defendant reiterates his argument that his conduct did not constitute "selling," and he also advances an argument that he did not "dispose [] of" stolen property when he purported to return the jeans to their owner for money; in defendant's view, one can only "dispose [] of" property either by turning it over to a third party or by throwing it away. The state responds by contending that both statutory terms should be given their plain, ordinary meaning. In the state's view, both "disposes of" and "selling" refer to acts of relinquishing or transferring possession or control of property and do not depend on the identity of the person to whom the property is relinquished or transferred.

         We begin by setting out the relevant text and providing some background about its origins. We then analyze the text, together with its context and legislative history, to determine whether the legislature intended to punish defendant's conduct as first-degree theft under ORS 164.055 (1)(c). See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (stating interpretation methodology).

         I. TEXT

         Oregon law defines the crime of theft broadly. ORS 164.015 provides:

[363 Or. 332] "A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person:
"(1) Takes, appropriates, obtains or withholds such property from an owner thereof; "(2) Commits theft of property lost, mislaid or delivered by mistake as provided in ORS 164.065;
"(3) Commits extortion as provided in ORS 164.075 by compelling or inducing another person to deliver property;
"(4) Commits theft by deception as provided in ORS 164.085; or
"(5) Commits theft by receiving as provided in ORS 164.095."

         Theft by receiving-the relevant act of theft here- is denned in ORS 164.095, which provides:

"(1) A person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.
"(3) 'Receiving' means acquiring possession, control or title, or lending on the security of the property."

ORS 164.055(1)(c) provides that a person commits the crime of theft in the first degree if the "theft is theft by receiving committed by buying, selling, borrowing or lending on the security of the property."

         II. BACKGROUND

         Before 1971, Oregon had several statutes that covered the various forms of unlawful property misappropriation and that incorporated the distinctions drawn between them by eighteenth-century English courts. See State v. Harris,246 Or. 617, 618, 427 P.2d 107 (1967) (stating that that the court was required to draw a distinction between two kinds of theft because "such a distinction was drawn by" the English courts and incorporated into the Oregon statutes); Donald L. Paillette, The Oregon Theft Laws: Consolidation v. Conglomeration, 51 Or L Rev 525, 525-29 (1972) (discussing [363 Or. 333] pre-1971 statutes). As this court explained in State v. Cox,336 Or. 284, 82 P.3d 619 (2003), "Those statutes set out a variety of elements applicable to each offense and prescribed different-and at times inconsistent-penalties * * *." Id. at 291 (citing Paillette, 51 Or L Rev at 526-29). In 1971, following the proposal of the Oregon Criminal Law Revision Commission, the legislature "eliminated the problems arising from those separate statutes by consolidating the various forms of unlawful property deprivation into a single offense of theft that does not depend on the relationship between the thief and the owner, the type of property, or the manner of deprivation."[3]Id. at 292; see ORS 164.015 (defining theft). The new statute, ORS 164.015, begins by specifying the required mental state for theft-the "intent to deprive another of property or to appropriate property to the person or to a third person." ...


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