and submitted May 18, 2017.
Multnomah County Circuit Court 15CR02855; Jerome E. LaBarre,
Laidlaw, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
M. Wilsey, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen,
Summary: Defendant appeals a judgment of conviction for five
counts of identity theft, ORS 165.800. Defendant assigns
error to the trial court's denial of his motion for a
judgment of acquittal, arguing that the state did not present
sufficient evidence from which a reasonable trier of fact
could have found that he obtained, possessed, transferred,
uttered, or converted the personal identification numbers
("PINs") of other jail inmates for his own use. The
state acknowledges that defendant did not utter, transfer, or
convert the PINs, but argues that a reasonable trier of fact
could have found that defendant "possessed" or
"obtained" them. Held: The evidence, along
with reasonable inferences following from that evidence, was
sufficient to support the finding that defendant had control
over, and thus "obtained" and "possessed"
the other inmates' PINs.
Or.App. 493] EGAN, C. J.
appeals a judgment of conviction, after a bench trial, for
five counts of identity theft, ORS 165.800, assigning error to
the trial court's denial of his motion for judgment of
acquittal (MJOA). While in the custody of the Multnomah
County Jail on a different charge, defendant used the jail
telephone five separate times, and each time, the call was
connected to the personal identification number (PIN) of
another inmate. At trial, the state presented testimony
identifying defendant's voice on the calls and
establishing the jail rule of "one inmate per
phone." Based on that evidence, the trial court denied
defendant's MJOA and convicted defendant on all counts.
On appeal, defendant argues that the trial court erred by
denying his MJOA because the state did not present sufficient
evidence from which a reasonable trier of fact could have
found that he obtained, possessed, transferred, uttered, or
converted the PINs to his own use. The state acknowledges
that defendant did not "utter,"
"transfer," or "convert" the PINs
"to his own use," but argues that a reasonable
trier of fact could have found that defendant
"possessed" or "obtained" them. We agree
with the state and, therefore, affirm.
reviewing the denial of a motion for judgment of acquittal,
we state the facts in the light most favorable to the state.
State v. Daiver, 195 Or.App. 534, 536, 98 P.3d 757
(2004). Defendant violated a pretrial release agreement on a
domestic violence charge. As a result, the trial court
ordered him to await trial in the custody of the Multnomah
County Jail and prohibited him from contacting K, the alleged
victim in the domestic violence case. At the jail, telephone
calls are monitored, logged, and recorded by a telephone
system administered by a private contractor. While in jail,
defendant spoke to K on five separate phone calls. The calls
were not connected to defendant's PIN. Four of the calls
were connected to one inmate's PIN, and one call was
connected to a different inmate's PIN. Both of those
inmates were housed in the same jail unit as defendant.
Or.App. 494] During defendant's bench trial, the state
called two employees from the Multnomah County Sheriffs
Office (MCSO), Banta and Fleming, to explain how jail inmates
make outgoing calls. Banta, a supervision deputy for pretrial
services and former corrections deputy inside the jail,
explained that there is either "a bank of phones where
the inmates stand next to each other" or "the
phones are located on poles that are in the center of the
unit." Fleming, the records coordinator for MCSO,
explained that "the rule is one inmate * * * for a
phone" and that, if a deputy sees multiple inmates at a
phone, they are "supposed to break it up." To make
a call, Banta explained that inmates "dial an outgoing
phone number and then they're required to enter a PIN, *
* * and then follow the prompts all the way through."
The PIN is a combination of an inmate's jail
identification number and date of birth. At the beginning of
the call, before the parties are connected, a recording
informs inmates that calls are monitored and that they may
receive disciplinary sanctions for permitting other inmates
to use their PINs, and instructs inmates about how to proceed
with the call. The state played portions of the five calls
between K and defendant, and Banta was able to identify
defendant's voice on each. No voices other than the
recording, defendant, and K were heard on any of the calls.
close of the state's case, defendant moved for a judgment
of acquittal on all counts, arguing that there was
insufficient proof about the way the calls in question were
placed for a trier of fact to find that defendant committed
identity theft under ORS 165.800Q). That statute provides:
"A person commits the crime of identity theft if the
person, with the intent to deceive or to defraud, obtains,
possesses, transfers, creates, utters or converts to the
person's own use the personal identification of another
trial court denied defendant's motion. On appeal,
defendant again argues that the state presented insufficient
evidence to establish that he committed "culpable
acts" under [296 Or.App. 495] the statute, specifically,
acts of "obtaining, possessing, transferring, uttering,
or converting" other inmates' PINs for his own use.
The state responds that the evidence sufficed to permit a
reasonable trier of fact to find that defendant
"obtained" or "possessed" the PINs.
defendant's challenge to the denial of an MJOA turns on
the meaning of a statute, we review the trial court's
construction of the statute for legal error. State v.
Holsclaw,286 Or.App. 790, 792, 401 P.3d 262, rev
den,362 Or. 175 (2017). "Then, based on the proper
construction of the statute, we view the evidence in the
light most favorable to the state to determine whether a