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State v. Mays

Court of Appeals of Oregon

September 26, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN WESLEY MAYS, JR., Defendant-Appellant.

          Argued and submitted February 28, 2018

          Washington County Circuit Court C160274CR Andrew Erwin, Judge.

          Matthew Blythe, Deputy Public Defender, argued the cause for appellant. Also on the opening and reply briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. John Wesley Mays, Jr., fled the supplemental brief pro se.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals from a judgment of conviction for first-and second-degree theft following a bench trial. To convict a person of first- or second-degree theft, the state must prove that the market value of the stolen item at the time and place of the crime exceeds certain monetary thresholds. Alternatively, the state may rely on the replacement value of the item if the market value cannot reasonably be ascertained. The trier of fact can determine that the market value of the stolen item cannot reasonably be ascertained if the state presents evidence that it is not possible to ascertain market value to a reasonable certainty by an investigation that is reasonable under the circumstances. Here, defendant argues that the trial court, acting as the trier of fact, erred when it relied on the replacement value of several of the items he stole, because there was insufficient evidence to establish that the market value of those items could not reasonably be ascertained. Held: The trial court did not err. Save for a few limited instances that had no effect on the verdict, the court relied on the market value [294 Or.App. 230] of the stolen items or properly determined that the market value could not reasonably be ascertained and relied on the replacement value of the stolen items.

         Affirmed.

         [294 Or.App. 231] SHORR, J.

         Defendant appeals from a judgment of conviction, following a bench trial, for first-degree theft, ORS 164.055, and second-degree theft, ORS 164.045.[1] To convict a person of either first- or second-degree theft, the state must prove that the "market value" of the stolen item or items at the time and place of the crime exceeds certain monetary thresholds. ORS 164.115(1). Alternatively, the state may prove the replacement value of the item or items if that market value "cannot reasonably be ascertained." Id. Defendant argues that the trial court-acting as the trier of fact-erred when it relied on the replacement value of certain of the items stolen by defendant, because the state failed to prove that the market value of those items could not reasonably be ascertained.[2] Addressing that issue, we first conclude that, if the state points to evidence that a marketplace in fact exists for property but that the marketplace is unreliable, that may be sufficient evidence from which a reasonable trier of fact can find that the market value of the property "cannot reasonably be ascertained" under ORS 164.115(1). Based on that construction, we next conclude that, save for a few limited instances that had no effect on the verdict, the trial court either relied on the market value of the stolen items or properly determined that the market value could not reasonably be ascertained and relied on the replacement value of the stolen items. Further, there was sufficient evidence that the value of the property stolen by defendant exceeded the requisite monetary thresholds to support a conviction for first- and second-degree theft, respectively. Accordingly, we affirm.

         I. FACTS AND PROCEDURAL HISTORY

         The state charged defendant with first-degree theft for breaking into a car owned by victim NI, from which defendant stole a Helly Hansen jacket, a lightly used prototype Sunice jacket that had not yet been released to the [294 Or.App. 232] public, a laptop, an iPad, a backpack, word-processing software, several flash drives, and miscellaneous other items. The state also charged defendant with second-degree theft for breaking into a car owned by victim SH, from which defendant stole a climbing harness, several carabiners, and other outdoor gear.

         At trial, the state elicited testimony from the two victims regarding the replacement values of each of the stolen items. Defendant presented testimony from Goodman, a valuation expert who provided market value estimates of many of the items, including the jackets, iPad, laptop, flash drives, and climbing harness and carabiners.[3] Goodman was unable to provide a dollar estimate for the word-processing software, but she did testify that the market for used software was unreliable. Goodman was not asked to provide an estimate of the market value of NI's stolen backpack. The state did not present its own valuation expert to address market values, although it did cross-examine Goodman to challenge the reliability of her estimates.

         In reaching its guilty verdict, the trial court made a number of findings regarding the value of the stolen items. With respect to the charge of first-degree theft of NI's property (Count 1), the court relied on Goodman's market value estimates, with a five percent upward adjustment to reflect the higher value at the time of the crime, for the Helly Hansen jacket ($84), iPad ($315), laptop ($378), and flash drives ($31).[4] The court relied on NI's replacement value of $99 for the backpack because Goodman "didn't testify at all" about its market value. The court also relied on the $130 replacement value of the word-processing software provided by NI because, based on Goodman's testimony, "there just isn't any reliable marketplace" for used software. Finally, the court relied on the $279 replacement value of the Sunice jacket because it did not accept Goodman's $95 market value estimate and, additionally, concluded that "there isn't [294 Or.App. 233] a marketplace" for a used jacket that has not been released to the general public. The total value of those items as found by the court was $1, 316.

         With respect to the charge of second-degree theft of SH's property (Count 3), Goodman estimated that the combined market value of the harness and carabiners was $40. The trial court, however, relied on the $90 replacement value of the climbing harness because the court determined that the market value of used climbing gear could not reasonably be ascertained. For similar reasons, the court also relied on the $8 replacement value of the carabiners provided by SH, for ...


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