Submitted on remand November 21, 2018.
Multnomah County Circuit Court 14CR30834; David F. Rees,
remand from the Oregon Supreme Court, State v.
Meyer, 363 Or. 744, 430 P.3d 561 (2018).
G. Lannet, Chief Defender, Criminal Appellate Section, and
Rond Chananudech, Deputy Public Defender, Office of Public
Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Doug M. Petrina, Assistant Attorney General,
filed the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: The Supreme Court, in State v. Meyer, 363
Or. 744, 430 P.3d 561 (2018), remanded this case to the Court
of Appeals for reconsideration in light of State v.
Fonte, 363 Or. 327, 422 P.3d 202 (2018). Defendant
challenges the denial of his motion for judgment of acquittal
on the charge of attempted first-degree theft. This case
arose out of a delivery of 17 boxes of merchandise to a North
Face store. One box containing three garments went missing
during that delivery. An hour later, defendant came into the
North Face store with merchandise identical to the
merchandise that was in the missing box and attempted to
exchange the items. Defendant was convicted of one count of
attempted first-degree theft. Held: In view of
Fonte, the Court of Appeals concluded that the trial
court erred when it denied defendant's motion for
judgment of acquittal, because the return of property to its
owner does not constitute disposing of the property by
"selling" within the meaning of ORS 164.055(1)(c).
Or.App. 633] LAGESEN, P. J.
Supreme Court has remanded this case to us, in which
defendant challenges the denial of his motion for judgment of
acquittal on the charge of attempted first-degree theft, for
reconsideration in light of its recent decision in State
v. Fonte, 363 Or. 327, 422 P.3d 202 (2018). State v.
Meyer, 363 Or. 744, 430 P.3d 561 (2018) (Meyer
II). For the reasons that follow, on review for legal
error, State v. Miller, 289 Or.App. 353, 357, 413
P.3d 999 (2017), we conclude that, under Fonte, the
trial court erred when it denied defendant's motion. We
as otherwise noted, the pertinent facts are not disputed. On
the afternoon of December 12, 2014, FedEx delivered 17 boxes
to the North Face store in northwest Portland. One box
containing three garments-a girl's jacket and two infant
jackets-went missing. About an hour after the box
disappeared, defendant came into the store with the three
jackets and attempted to exchange them. The store manager
contacted police, who arrested defendant.
was charged with one count of second-degree theft (Count 1)
and one count of attempted first-degree theft (Count 2).
Count 1 was predicated on the state's theory that
defendant was the person who had taken the jackets in the
first place. Count 2 was predicated on the theory that
defendant attempted to commit first-degree theft by receiving
by "selling" when he attempted to exchange the
Or.App. 634] Defendant elected to be tried by a jury. At
trial, defendant moved for a judgment of acquittal on Count 2
on the ground that there was insufficient evidence that
defendant had attempted to dispose of the jackets by
"selling" them within the meaning of ORS
164.055(1)(c). In particular, defendant argued that returning
the jackets to the store, even had he succeeded, would not
constitute the "selling" of the jackets for
purposes of ORS 164.055(1)(c). The trial court denied the
motion, reasoning that "exchanging something for store
credit instead of cash is selling under ORS 164.055(1)."
The jury acquitted defendant on Count 1, but convicted on
appealed, assigning error to the trial court's denial of
his motion for judgment of acquittal. He reiterated his
argument that returning or exchanging an item does not
constitute "selling" under ORS 164.055(1)(c).
Consistent with our decisions in several cases presenting the
same legal issue, including State v. Fonte, 285
Or.App. 653, 402 P.3d 784 (2017), itself, we affirmed without
opinion. State v. Meyer,287 Or.App. 887, 403 P.3d
812 (2017) (Meyer I). Following its decision in
Fonte, the Supreme Court allowed review ...