Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Connolly

Court of Appeals of Oregon

March 13, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL STEVEN CONNOLLY, aka Steven Michael Connolly, II, Defendant-Appellant.

          Argued and submitted May 18, 2017.

          Multnomah County Circuit Court 15CR02855; Jerome E. LaBarre, Judge.

          Sarah 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 Services.

          Robert 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.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge. [*]

         Case 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.

         [296 Or.App. 493] EGAN, C. J.

         Defendant appeals a judgment of conviction, after a bench trial, for five counts of identity theft, ORS 165.800, [1]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.

         In 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.

         [296 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.

         At the 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).[2] 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 person."

         The 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.

         When a 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.