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State v. Meyer

Court of Appeals of Oregon

January 9, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
DUSTIN DOUGLAS MEYER, Defendant-Appellant.

          Submitted on remand November 21, 2018.

          Multnomah County Circuit Court 14CR30834; David F. Rees, Judge.

          On remand from the Oregon Supreme Court, State v. Meyer, 363 Or. 744, 430 P.3d 561 (2018).

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case 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).

         Reversed.

         [295 Or.App. 633] LAGESEN, P. J.

         The 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 therefore reverse.

         Except 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.[1] The store manager contacted police, who arrested defendant.

         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 stolen jackets.[2]

         [295 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 Count 2.

         Defendant 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 ...


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