39
Argued and submitted April 11, 2019, Portland Community College, Portland;
affirmed May 6, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
LEVITICUS BLUE CLIFTON,
Defendant-Appellant.
Polk County Circuit Court
17CR42404; A166439
466 P3d 963
While arresting defendant on an outstanding warrant, officers discovered
tools in his car that did not belong to him. Although defendant claimed otherwise,
the tools belonged to R. At defendant’s bench trial for first-degree theft, he moved
for judgment of acquittal, arguing insufficient evidence. The trial court denied
the motion and found defendant guilty. He was sentenced under Oregon’s repeat
property offender statute, ORS 137.717 (2015), amended by Or Laws 2017, ch 673,
§ 5. On appeal, defendant contends that the trial court erred in two respects:
(1) by denying his motion for judgment of acquittal and (2) by relying on his
second-degree burglary conviction in the State of Washington as a previous
conviction that added two months to his sentence under ORS 137.717 (2015).
Held: The trial court did not err in denying defendant’s motion for judgment of
acquittal, because the evidence permitted a finding that defendant withheld the
tools belonging to R with the conscious objective of appropriating the property to
himself. The trial court did not err in adding two months to defendant’s sentence,
because the second-degree burglary statutes under Oregon and Washington law
are sufficiently similar to be “comparable offenses” for purposes of ORS 137.717
(2015).
Affirmed.
Sally L. Avera, Judge.
Marc D. Brown, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
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 Lagesen, Judge,
and Shorr, Judge.
40 State v. Clifton
LAGESEN, J.
Affirmed.
Cite as 304 Or App 39 (2020) 41
LAGESEN, J.
While arresting defendant on an outstanding warrant, officers discovered a large number of tools in defendant’s car that did not belong to him. Instead, although
defendant claimed otherwise, the tools belonged to R. The
officers’ discovery of the tools ultimately led to defendant’s
conviction for first-degree theft, for which he was sentenced
to 22 months’ incarceration under Oregon’s repeat property offender statute, ORS 137.717 (2015), amended by Or
Laws 2017, ch 673, § 5.1 On appeal, defendant contends
that the trial court erred in two respects: (1) by denying his
motion for judgment of acquittal and (2) by relying on defendant’s second-degree burglary conviction in the State of
Washington as a previous conviction that added two months
to his sentence under ORS 137.717. We affirm.
We review the trial court’s denial of a motion for a
judgment of acquittal to determine “whether, viewing the
evidence and all reasonable inferences from the evidence in
the light most favorable to the state, a rational trier of fact
… could have found the essential elements of the crime
beyond a reasonable doubt.” State v. McKnight, 293 Or App
274, 275,
426 P3d 669, rev den,
363 Or 817 (2018) (ellipsis in
original; internal quotation marks and brackets omitted).
We review for legal error the trial court’s application of a
sentencing statute. State v. Thomas,
281 Or App 685, 691,
386 P3d 218 (2016).
We state the facts underlying defendant’s conviction
in accordance with our standard of review; the procedural
facts are not disputed.
From February to July 2017, the victim, R, was
developing property on an old Christmas tree farm to build
a house. R constructed a pop-up, canvas-sided “garage” to
store his tools while he developed the property. He stored a
variety of items ranging from common tools that could be
purchased at a general hardware store to brand-new, costly,
specialty tools such as a laser level.
1
Unless otherwise indicated, all references to ORS 137.717 are to ORS
137.717 (2015). The legislature amended the statute in 2017, making the amendments operative as of January 1, 2018. Or Laws 2017, ch 673, § 5. The amendments have no application to this case.
42 State v. Clifton
Sometime between May 28 and June 9, defendant
approached R to discuss turning on the water for the foreclosed house above R’s property. Defendant and several other
people had started work on the house and remained on the
property for the next three to five days. A week or two after
his discussion with defendant, R discovered that several of
his tools were missing, so he made a list and notified the
police. The last time R could remember seeing his tools was
around the same time he had spoken with defendant, which
he told police.
Five days after R noticed that his tools were missing, Officer Hutchison stopped to offer assistance at a
broken-down vehicle less than a half mile from R’s property.
Defendant was the driver of the vehicle. Hutchison recognized defendant, knew both that defendant was a suspect in
the theft of R’s tools and that he had an outstanding warrant, and arrested him on the warrant.
During the arrest, Hutchison noticed a large number of tools in defendant’s vehicle, and had another officer,
Williams, contact R to have him come to the car to see if he
could identify any of the tools. Before R arrived, Williams
informed defendant that R had had several tools stolen
from him recently and asked if any of the tools in the vehicle belonged to R. Defendant denied that any of the tools
belonged to R and asserted that the tools in the trunk and
backseat were his own.
R arrived at the location and identified some of the
tools in the trunk of the car as those taken from his garage.
Following R’s identification of the tools, Williams again
asked defendant if any of the tools were R’s, and defendant
again reiterated that none of the tools were R’s. In response,
Williams told defendant that he wanted him “to be honest,”
that “he was going to be the one that’s going to be standing
before the judge on this,” and that “he can go as an honest
guy that made a mistake or a guy that made a mistake and
was going to lie.” Defendant put his head down, paused, and
said, “[i]t’s not going to change the charges” and, again, that
the tools were not R’s.
Williams then transported defendant to jail. Ten of
the tools belonged to R and were worth more than $3,000.
Cite as 304 Or App 39 (2020) 43
Defendant was charged with theft in the first degree
and burglary in the second degree. Defendant subsequently
pleaded not guilty to both charges and went to trial. At trial,
defendant moved for a judgment of acquittal on both counts,
which were denied.
With respect to the theft charge, defendant contended that there was insufficient evidence to permit a
finding that defendant “knowingly committed the theft of
property. There are other reasonable explanations [of] how
property could be obtained.” The trial court denied the
motion, explaining that the evidence of defendant’s conduct
in the car at the time of his arrest on the warrant was sufficient to support a finding that defendant was committing
theft by withholding R’s property, with the intent to appropriate that property to himself:
“[T]heft is essentially a requirement only that the defendant, with intent to deprive another or appropriate the
property to himself, took, appropriated, obtained, or withheld the property of [R]. … He denied that it was [R]’s
property and had appropriated—appears to have appropriated it, or at least there’s sufficient evidence from which the
court could conclude that he has either withheld it from [R]
or appropriated it to his own use by having it, claiming it as
his own, and denying its ownership by another.”
The trial court found defendant guilty of first-degree
theft and not guilty of second-degree burglary. At sentencing, the court imposed 22 months’ incarceration under ORS
137.717. It determined that the statute required 18 months’
incarceration because of defendant’s conviction for first-degree
theft plus an additional two months for each of defendant’s
previous convictions for property crimes. For that reason, the
court imposed an additional two months each for defendant’s
Oregon second-degree theft conviction and Washington
second-degree burglary conviction. Defendant objected to the
court’s reliance on the Washington conviction, contending
that it was not a “comparable offense” within the meaning
of ORS 137.717(9)(b) on which the court could rely to impose
an additional two months. The court rejected that argument,
concluding that the offense of second-degree burglary under
Washington law is one that is comparable to second-degree
burglary under Oregon law for purposes of ORS 137.717.
44 State v. Clifton
On appeal, defendant assigns error, arguing that
the trial court erred in (1) denying his motion for judgment
of acquittal on Count 1, first-degree theft and (2) increasing his sentence by two months for the Washington conviction. The state responds that the court did not err in either
respect.
We start with defendant’s challenge to the trial
court’s denial of his motion for judgment of acquittal.
Defendant’s argument, in the main, is that the only evidence
to support that conviction is evidence that he possessed R’s
tools: Under our case law, “mere possession of recently stolen
goods is not, on its own, enough to prove the mental state for
theft.” That is, in defendant’s view, it is not inferable from
the evidence, which defendant views as being evidence of
possession alone, that defendant had the intent—the “conscious objective,” ORS 161.085(7)—to deprive R of his tools
permanently or to appropriate the tools to himself.
The state responds that the trial court focused on
the evidence of defendant’s conduct in the car when it denied
defendant’s motion for judgment of acquittal. In the state’s
view, that evidence went beyond evidence of defendant’s
“mere possession” of the tools. It included defendant’s continued insistence that the tools belonged to him, both after he
had been told about the theft of tools from R and again after
R arrived and identified the tools. That evidence, the state
argues, would allow at a minimum a finding that defendant
was, at that point in time, withholding the tools from R with
the intent to appropriate the property to himself.
We agree with the state. ORS 164.015 provides, in
relevant part:
“A person commits theft when, with intent to deprive
another of property or to appropriate property to the person
or to a third person, the person:
“(1) Takes, appropriates, obtains or withholds such
property from an owner thereof[.]”
(Emphases added.) Just as the trial court reasoned, the
evidence here permitted a finding that defendant withheld the tools belonging to R (thereby withholding property
Cite as 304 Or App 39 (2020) 45
from its owner) with the conscious objective of appropriating the property to himself. That is because the evidence
showed that defendant possessed R’s tools and then continued to maintain that they were his own—without offering
to return the tools to R—even after he was told about the
theft of R’s tools and even after R arrived and identified the
tools as belonging to him.2 For those reasons, the trial court
properly denied defendant’s motion for judgment of acquittal
on the theft charge.
Turning to defendant’s claim of sentencing error,
the issue is whether the trial court erred when it determined that, under ORS 137.717, defendant’s previous conviction in Washington for second-degree burglary under
Revised Code of Washington (RCW) 9A.52.030 qualifies
as a “comparable offense” to second-degree burglary under
ORS 164.215 so as to permit increasing defendant’s sentence by two months based on the Washington conviction.
An out-of-state offense is comparable to an Oregon offense
for purposes of ORS 137.717 if the out-of-state offense has
“ ‘the same as or nearly the same as the elements of’ ” the
Oregon offense. State v. Baker, 298 Or App 521, 525,
447 P3d
526 (2019) (quoting State v. Carlton,
361 Or 29, 43,
388 P3d
1093 (2017)). Therefore, we compare the elements of second-degree burglary under RCW 9A.52.030 to the elements of
second-degree burglary under ORS 164.215 to see if those
elements are the same or nearly the same. That comparison
shows that they are.
RCW 9A.52.030(1) defines second-degree burglary
under Washington law as follows:
2
To the extent defendant’s argument suggests that he may not have been
aware that the tools were stolen or that he had a right to possess them, we note
that the criminal code provides a defense to a person who commits theft under an
“honest claim of right.” ORS 164.035(1) states:
“In a prosecution for theft it is a defense that the defendant acted under
an honest claim of right, in that:
“(a) The defendant was unaware that the property was that of another;
or
“(b) The defendant reasonably believed that the defendant was entitled
to the property involved or had a right to acquire or dispose of it as the defendant did.”
Defendant did not, however, raise the “honest claim of right” defense at trial,
much less raise the defense before his motion for judgment of acquittal.
46 State v. Clifton
“A person is guilty of burglary in the second degree if,
with intent to commit a crime against a person or property
therein, he or she enters or remains in a building other
than a vehicle or a dwelling.”
ORS 164.215(1) defines second-degree burglary
under Oregon law similarly, “[A] person commits the crime
of burglary in the second degree if the person enters or
remains unlawfully in a building with intent to commit a
crime therein.” A “building,” under ORS 164.215, “in addition
to its ordinary meaning, includes any booth, vehicle, boat,
aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein.” ORS
164.205(1).
Comparing the two offenses demonstrates that they
have “nearly the same” elements, albeit not exactly the same
elements. The difference is that Washington law defines the
offense in slightly narrower terms than does Oregon law.
Both statutes require proof of these same three elements:
(1) an unlawful entry or remaining; (2) in a building; (3) with
the intent to commit a crime therein. The only variations
between the two offenses are that (1) under Washington law,
the building cannot be a house or a vehicle, as it can under
Oregon law and (2) under Washington law, the intended
crime must be a person or property crime, whereas, under
Oregon law, any intended crime will do. Those differences
are slight enough to allow the conclusion that the elements of
second-degree burglary under Washington law are “nearly
the same” as the elements of second-degree burglary under
Oregon law. Of particular significance, we think, is the fact
that, given the slightly narrower scope of the Washington
statute, all conduct that would violate it necessarily would
violate the Oregon statute as well (if committed in Oregon).
Consequently, we conclude that RCW 9A.52.030 and ORS
164.215 are “comparable offenses” for purposes of ORS
137.717. The trial court, therefore, correctly determined that
ORS 137.717 required it to increase defendant’s sentence by
two months based on his previous Washington conviction
under RCW 9A.52.030.
Affirmed.
