31
Argued and submitted August 7, 2018; convictions on Counts 3 and 5 reversed,
remanded for resentencing, otherwise affirmed February 3, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROY RICHARD PETERSON,
Defendant-Appellant.
Grant County Circuit Court
150125CR; A163668
482 P3d 68
Defendant appeals a judgment convicting him of first-degree theft (Count 2),
aggravated first-degree theft (Count 3), and possession of a stolen vehicle
(Count 5). The charges related to funds, equipment, and vehicles that defendant
acquired as chief of a voluntary fire department. Defendant was convicted of
Counts 3 and 5 for refusing to transfer possession of firefighting equipment and
vehicles when members of the department formed a tax-funded, rural fire protection district. On appeal, defendant argues that the trial court erred in denying
his motion for judgment of acquittal (MJOA) on Counts 3, in which he asserted
that he had an ownership interest in the equipment and vehicles and that the district did not. Held: The trial court erred in denying defendant’s MJOA. Because
the district did not own the property at the time of defendant’s alleged offenses,
the evidence was insufficient to establish every element of Counts 3 and 5.
Convictions on Counts 3 and 5 reversed; remanded for resentencing; otherwise affirmed.
Paul G. Crowley, Senior Judge.
Benjamin Boyd argued the cause for appellant. Also on
the brief were D. Zachary Hostetter and Hostetter Law
Group, LLP.
E. Nani Apo, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.*
______________
* DeVore, J., vice Hadlock, J. pro tempore.
32 State v. Peterson
DeHOOG, P. J.
Convictions on Counts 3 and 5 reversed; remanded for
resentencing; otherwise affirmed.
Cite as 309 Or App 31 (2021) 33
DeHOOG, P. J.
Defendant appeals a judgment convicting him of
first-degree theft, ORS 164.055 (Count 2), aggravated first-degree theft, ORS 164.057 (Count 3), and possession of a
stolen vehicle (PSV), ORS 819.300 (Count 5). Those charges
related to funds, equipment, and vehicles that defendant
acquired as chief of a voluntary fire department (the department). Defendant was convicted after submitting false
invoices to the state to procure state grant funding and
refusing to transfer possession of firefighting equipment
and vehicles (the department property) when members of
the department formed a tax-funded, rural fire protection
district (the district or MRFD). Defendant’s opening brief
raises four assignments of error, all directed at his convictions for aggravated theft and PSV.1 In his first assignment
of error, defendant argues that the trial court erred in denying his motion for judgment of acquittal (MJOA) as to Counts
3 and 5, because, as a matter of law, he could not have stolen
the department property—nor could his possession of that
property constitute PSV—when he had an ownership interest in the property and the district, the purported victim of
his offenses, did not. The state responds that the evidence
was sufficient for the jury to find that, at the time of the
alleged offenses, defendant had no ownership interest in the
department property and that the district, in fact, was its
owner. For the reasons that follow, we agree that the trial
court committed reversible error in denying defendant’s
MJOA.2 Accordingly, we reverse defendant’s convictions on
Counts 3 and 5, remand for resentencing, and otherwise
affirm.
1
In supplemental briefing, defendant contends that the trial court committed plain and structural error as to all of his convictions when it instructed the
jury that its verdicts need not be unanimous. We reject that argument. State v.
Dilallo, 367 Or 340, 342, 349,
478 P3d 509 (2020) (declining to exercise discretion
to review, as plain error, the trial court’s instruction that the jury could convict
the defendant without reaching unanimity when the defendant did not preserve
an objection to that instruction and the record did not reveal whether the jury’s
guilty verdicts were unanimous). Defendant’s conviction under Count 2 is not
otherwise at issue in this appeal.
2
That conclusion obviates the need for further consideration of defendant’s
remaining assignments of error, which either reprise the arguments he makes
under his first assignment or raise issues related only to the convictions we
reverse.
34 State v. Peterson
In reviewing the denial of an MJOA, we view “the
evidence in the light most favorable to the state” to determine whether “a rational trier of fact, making reasonable
inferences, could find the essential elements of the crime
beyond a reasonable doubt.” State v. Hedgpeth, 365 Or 724,
730,
452 P3d 948 (2019) (internal quotation marks omitted).
We state the facts accordingly.
In 2001, a large fire spread through defendant’s
hometown of Monument, Oregon, burning thousands of
acres and multiple structures. In response, defendant, who
had been fighting fires since the age of 16, began organizing
the department to protect the rural region against future
fires and to supplement the fire protection provided by governmental agencies, which did not fight structure fires in
that region. Defendant formed the group with the goal of
becoming a recognized, tax-funded fire district. See ORS
478.001(1)(d) (“ ‘District’ means a rural fire protection district proposed to be organized or organized under, or subject to, [ORS chapter 478].”). Although the group established
a “steering committee” that helped guide the direction of
the department, there were no bylaws or any other form of
governing agreement that controlled the group’s operations.
Instead, defendant spearheaded the group’s efforts and was
the self-appointed organizer and acting fire chief of the
group.
Acting in that capacity, defendant opened a checking account for the department to which only he had access.
Between 2001 and 2012, defendant procured firefighting
equipment and vehicles for the department’s use. Defendant
acquired the property through various means, including
donations, scavenging efforts, and purchases defendant
made with annual state and federal grant funding. The
property at issue on appeal was acquired through such
grants. Oregon Department of Forestry (ODF) employees
who administered the grant programs testified that ownership of property acquired with grant funds vests in the organization awarded the grant. Defendant kept the equipment
that he acquired for the department at his private residence.
Despite the group’s goal of establishing an official fire
district, the department remained a voluntary organization
Cite as 309 Or App 31 (2021) 35
for a number of years. However, in 2007, another large fire
hit the region and reinvigorated community interest in
establishing a tax-based rural fire protection district. As
a prerequisite to circulating a petition to form an official
district, defendant formed an advisory committee, naming
all of the department’s volunteer members to the committee
and designating himself the committee chair. Although the
county initially rejected their petition, defendant successfully challenged that denial after using some of the department’s grant money to hire an attorney. Due to the delays of
litigation, however, the department’s petition for formation
of a district was not approved by county officials and put to
a county-wide vote until November 2012. The county voted
in favor of the proposed district, and, shortly thereafter, on
November 21, 2012, the Grant County Court issued an order
officially forming and establishing the Monument Rural
Fire District (MRFD).3
Once formed, the district was initially governed
by a board composed primarily of members of the department. Defendant was not on the board, but he was considered the district’s fire chief. The district’s initial board soon
disbanded. In December 2012, after having met only twice,
the entire board resigned, citing differences in opinion with
defendant in his role as fire chief. Those differences arose
when the board made preliminary efforts to operate the district and made certain demands with which defendant did
not agree. For example, rather than defendant’s personal
post office box, which had served as the department’s mailing
address, the board attempted to designate the home address
of the new board president as the district’s official address.
Additionally, the district board demanded that defendant
turn over the department’s checkbook and financial records
and that defendant no longer use district vehicles for personal purposes. In response, defendant expressed frustration that the board was, in his opinion, improperly running
the district by holding meetings at a private residence and
3
Even though Monument Rural Fire District is the official name of the district established in 2012, both the department and the district were referred
to interchangeably as the Monument Rural Fire Department or the Monument
Rural Fire District throughout their respective existences. To avoid confusion, we
refer to the volunteer organization as “the department,” and the county-approved
district as “the district” or MRFD.
36 State v. Peterson
attempting to conduct business without having filed the district’s articles of incorporation with the Secretary of State,
a task the board did not complete until January 2014. At
trial, members of the board also testified that, in addition
to expressing those concerns, defendant had told the board
“ ‘Well, if that’s the way you guys feel, I’ll just step down.’ ”4
Despite uniformly testifying to that understanding of events,
the board’s entire membership subsequently resigned, citing
their differences with defendant as fire chief.
Following the board’s resignation, defendant continued fighting fire with the department property. In
January 2013, a month after the resignations, the county
court appointed three new members to the district board,
who then brought on two other individuals to fill the board’s
remaining vacancies. Although defendant applied to be on
the board, he was not selected. Defendant eventually turned
over the volunteer department’s ledger and checkbook as
requested, but he retained the department property.
When the new board held its first meeting in
February 2013, it formally appointed a district fire chief.
Defendant attended that meeting, but he did not express
interest in being appointed chief. Instead, the position went
to the only person who had expressed interest. At trial, the
board’s president testified that, as of that time, he understood that defendant no longer had any involvement with
the district.
At the time of its February 2013 meeting, the board
was aware that the ownership of the department property was in dispute and knew that defendant was keeping it at his residence. As of that date, no action had been
taken to transfer title to any of the department property
to the newly established district. Nevertheless, the board
asked at the February 2013 meeting that defendant turn
the department property over to the district. According to
the testimony of the district’s fire chief, defendant declined,
asserting that “ ‘everyone needed to get together and figure
out the ownership interests first.’ ” No such meeting took
4
At trial, defendant denied having made that statement and said that he
had not resigned from his position with the department.
Cite as 309 Or App 31 (2021) 37
place, and, according to defendant, he continued operating
the department formerly known as the Monument Rural
Fire Department under the new name of “Top Rural Fire
Department” or “Top Rural Fire District.” Defendant went
so far as to transfer title of some of the department vehicles to Top Rural. Days later, on February 21, 2013, the district fire chief sent defendant a letter demanding that he
“return any and all belongings” of the Monument Rural Fire
Department in his possession. Defendant did not comply
with that request. In October 2013, the state police seized
the department property from defendant’s land pursuant to
a warrant. As relevant here, defendant subsequently was
charged with aggravated first-degree theft and PSV, alleged
to have occurred “on or about February 21, 2013,” the date of
the district chief’s demand.
At trial, the state’s theory was that defendant had
committed the charged offenses when he withheld the
department property from the district after receiving its
February 21, 2013, demand letter. Defendant’s primary
argument in response was that the case concerned a civil
property dispute, not criminal wrongdoing. At the conclusion
of the state’s case-in-chief, defendant moved for judgment of
acquittal on the charges of aggravated first-degree theft and
PSV. Defendant argued that he had an ownership interest
in the department property that precluded the state’s assertion that it was stolen, because, he contended, ownership of
property held by a voluntary association, such as the department, vests jointly in the association’s individual members.
Consequently, defendant argued, he could not be convicted
for having stolen property from the district—or for being in
possession of property that was stolen—because the prosecution had not proved that the district had an ownership
interest in the property superior to his own. Defendant also
asserted that, because title and ownership had already
vested in the membership of the department as a voluntary
association, the mere creation of an official district did not
result in a transfer of those interests to the district. Finally,
defendant argued that the district could not have owned
the department property at the time of the alleged offenses,
because it had not yet filed its articles of incorporation and
therefore lacked legal capacity to own property. As a result,
38 State v. Peterson
defendant argued, the prosecution had not met its evidentiary burden as to the challenged charges.
The court denied defendant’s MJOA, ruling that
the issues were matters for the jury and emphasizing the
prosecution’s evidence that the department had “morphed
into” the district. The jury ultimately convicted defendant
for first-degree theft, aggravated first-degree theft, and
PSV. Defendant now appeals.5
In his first assignment of error, defendant argues
that the trial court erred in denying his motion for judgment
of acquittal, which, as noted, was premised on a lack of evidence that the department property was stolen. Although
defendant’s arguments rely on a somewhat involved analysis
of various statutes and common law principles governing
legal entities, property rights, and theft, those arguments
reduce to the rather straightforward assertion that he could
not be convicted on the challenged counts because (1) he had
an ownership interest in the department property at the
time of the alleged offenses and (2) the district did not. We
proceed to consider those arguments.
Defendant first asserts that, as a “voluntary, unincorporated association,” the department “had no legal existence separate from its members.” See Cousin v. Taylor et al.,
115 Or 472, 475,
239 P 96 (1925) (a “voluntary, unincorporated association, which was not organized to conduct business for a pecuniary profit, and possessed none of the elements of a partnership … had no legal existence distinct
from its membership”). Defendant argues that, rather than
the department owning anything, its members, including
defendant himself, held, as individuals, title and ownership
of the department’s vehicles and equipment. See State of
Oregon v. Rice,
206 Or 237, 242,
291 P2d 1019 (1956) (“[I]t
must be acknowledged that title and ownership of the property of a voluntary association rests in the individual members, subject only to the right of enjoyment as agreed among
5
Defendant’s first-degree theft conviction (Count 2) related to his receipt
of grant funds in his capacity as the department’s fire chief. Defendant did not
challenge the sufficiency of the evidence to support that conviction, and, other
than the supplemental assignment of error that we have already rejected, that
conviction and the facts underlying it are not at issue on appeal.
Cite as 309 Or App 31 (2021) 39
themselves.”). As a result, defendant argues, he, and not the
department, had an ownership interest in the department
property.
Second, defendant argues that the district had no
such interest in the department property at the time in question. In support of that argument, defendant notes that all
of the property had been acquired before the district came
into existence in November 2012. Defendant further argues
that, just because the department and the district shared
common membership, it does not follow that the district
acquired ownership rights over the department’s assets.
Cf. Marvin v. Manash, 175 Or 311, 320,
153 P2d 251 (1944)
(“even though membership and general setup and purpose
were identical,” a labor union “was powerless … to transact the business” of a distinct unincorporated association
(internal quotation marks omitted)). Further yet, defendant
argues that, at the relevant time, the district lacked the
legal capacity to own property. For support, defendant looks
to ORS 198.782, which prohibits a municipal corporation
from “transact[ing] business of any kind until a notice of
incorporation or formation has been filed with the Secretary
of State by that corporation.” In defendant’s view, an entity
that cannot transact business cannot acquire property
rights from another entity, and, here, because the district
did not file its articles of incorporation until January 2014, it
could not have acquired an ownership interest in the department property before then. Defendant concludes, therefore,
that, because he had an ownership interest in the department property in February 2013 and the district did not, he
could not have committed theft from the district when he
refused to turn over the department property in response to
the district’s demand, nor could any vehicle that he retained
be deemed “stolen.”
In contrast to defendant’s legal arguments, the
state characterizes the relevant question as an issue of
fact, namely, whether “the record contain[s] sufficient evidence from which a rational trier of fact could find that
the [district] was the ‘owner’ of the firefighting vehicles
and equipment that were the subject of defendant’s convictions for aggravated first-degree theft and possession of a
stolen vehicle.” The state argues that “the record contains
40 State v. Peterson
ample evidence from which a jury could have found that
the informal fire department became the district, and that
defendant’s ownership interest in the property therefore
ceased when he ended his involvement with the district.”
(Emphasis in original.) Contrary to defendant’s argument
that the department and the district were two distinct entities, the state argues that there was sufficient evidence in
the record for the jury to conclude that, after the district
was established in November 2012, there was only a single entity and that the department had ceased to exist.
The state further argues that the record demonstrates that
defendant ended his affiliation with that entity, after it had
become the district, when he offered his resignation at the
December 2012 meeting. Therefore, the state argues, when
the newly appointed fire chief requested in February 2013
that defendant return the department property, defendant
had lost any ownership interest that he may previously have
held and committed the charged crimes when he failed to
comply with that request.
The state contends that, in arguing that the court
should have granted his motion for judgment of acquittal,
defendant ignores many competing inferences that were
available on the record. The state notes that defendant’s goal
from the outset in 2001 was to establish an official rural fire
protection district. The state emphasizes the many efforts
that defendant undertook to achieve that goal, including
filing the required petition and hiring an attorney to contest its initial rejection by the county. The state also points
out that, after the district was established and formed in
November 2012, defendant appeared to briefly serve as the
district’s fire chief before stepping down due to disagreements with the district board. Lastly, the state argues
that a “rational juror could conclude that defendant’s act of
handing over control of the [department’s] checking account
to the board suggests that defendant understood that the
account belonged to the district” and that the department
and “the official district were one and the same.” Therefore,
the state concludes, a rational juror could have found that
the voluntary department became an official district, and
not “a second fire department for others to run as an official
fire district” while defendant continued with the voluntary
Cite as 309 Or App 31 (2021) 41
department. (Emphasis in original.) As a result, the state
asserts, the trial court did not err in denying defendant’s
MJOA, because there were sufficient facts in the record
for the jury to find that defendant committed the charged
offenses by unlawfully withholding the department property in February 2013.
As noted, when reviewing the denial of an MJOA,
we must view the facts in the light most favorable to the state
and determine whether, when so viewed, the record contains
“sufficient evidence from which a rational trier of fact, making reasonable inferences, could find the essential elements
of the crime beyond a reasonable doubt.” Hedgpeth, 365 Or
at 730 (internal quotation marks omitted). However, “[w]hen
legal disputes are encompassed in the arguments for and
against a motion for judgment of acquittal, we resolve them
as we would any other legal question.” State v. Turnidge
(S059155),
359 Or 364, 455,
374 P3d 853 (2016), cert den,
137
S Ct 665 (2017). Here, the parties dispute whether defendant’s first assignment of error raises questions of fact or
law. We conclude that the dispositive question is one of law
and that the trial court incorrectly decided that question
in denying defendant’s MJOA; accordingly, the trial court
erred when it denied defendant’s motion.
We begin our analysis with a review of the elements that the state had to establish to convict defendant of
aggravated first-degree theft, ORS 164.057, and PSV, ORS
819.300. First, as relevant here, ORS 164.057(1) provides
that “[a] person commits the crime of aggravated theft in
the first degree” if the person “violates ORS 164.055 with
respect to property” that has a value of $10,000 or more.
The internally referenced statute, ORS 164.055, defines
theft in the first degree and, in turn, relies on the definition
of theft provided in ORS 164.015.6 And, in relevant part,
ORS 164.015(1) states that a person commits theft when
the person “[t]akes, appropriates, obtains or withholds …
property from an owner thereof” with the “intent to deprive
6
As relevant to this appeal, ORS 164.055(1)(a) provides that “[a] person commits the crime of theft in the first degree if, by means other than extortion, the
person commits theft as defined in ORS 164.015 and … [t]he total value of the
property in a single or aggregate transaction is $1,000 or more[.]”
42 State v. Peterson
another of property or to appropriate property to the person.”
As implicated by defendant’s MJOA and his argument on
appeal, the critical element of aggravated first-degree theft
is the requirement that the property at issue be appropriated or withheld “from an owner thereof.” That is, the state
was required to prove that the district, as the purported
victim of defendant’s theft, was the owner of the department
property when defendant rejected the district’s demand to
turn that property over.
Second, ORS 819.300 provides that “[a] person commits the offense of possession of a stolen vehicle if the person
possesses any vehicle which the person knows or has reason to believe has been stolen.” Although ORS 819.300 does
not incorporate ORS 164.015 or otherwise expressly include
theft in its definition of PSV, there is no apparent dispute
that, to establish the “stolen” element of that offense, the
state was required to prove that one or more of the firefighting vehicles in defendant’s possession had been the subject
of a theft within the meaning of ORS 164.015.7 That, like
the allegation of aggravated first-degree theft, required the
state to establish that the property at issue was not defendant’s but, instead, property of another. The state understood that burden and, accordingly, pursued the theory at
trial that the district owned the department property in
February 2013. As the state asserted at trial and maintains
on appeal, when, at that time, defendant refused to hand
the department property over as the district requested, he
committed theft by unlawfully withholding the district’s
property and committed PSV by continuing to possess one
or more firefighting vehicles that he had stolen from the
district. At the time of defendant’s MJOA, the trial court
agreed that the jury could find that the department property
belonged to the district, based on the court’s understanding
that the department had “morphed” into the district and,
presumably, assumed ownership of the department’s property. We conclude otherwise.
7
We note that both parties requested the same uniform jury instruction
regarding this charge, UCrJI 1823. In giving that instruction, the trial court
informed the jury that, to find defendant guilty of the PSV charge, it must find
that defendant had “possessed a vehicle that was the subject of theft” and that
defendant “knew or believed the vehicle was the subject of theft.”
Cite as 309 Or App 31 (2021) 43
In reaching our conclusion, we agree with defendant that the district could not have been the owner of the
department property in February 2013, when the alleged
offenses occurred. That conclusion follows in large part
from the statutes that governed the formal establishment of
MRFD as a rural fire protection district. First, ORS chapter 478 broadly governs rural fire protection districts within
counties. Second, because they are statutorily designated
as “district[s],” rural fire protection districts are subject
to the formation provisions of ORS chapter 198. See ORS
198.010(14) (“A rural fire protection district organized under
ORS chapter 478” is a district subject to ORS chapter 198.);
ORS 198.705(8) (“ ‘District’ has the meaning given that
term in ORS 198.010[(14)].”); and ORS 198.715 (“[A]ll district formation or change of organization proceedings shall
be initiated, conducted and completed as provided by ORS
198.705 to 198.955.”). Third, under ORS chapter 297, made
applicable here by ORS 198.782 (the text of which is set out
below), a rural fire protection district also is a “municipal
corporation” subject to its terms. ORS 297.405(5)(c) (defining
“municipal corporation” to include districts).
Two provisions within ORS chapter 198 particularly
inform our analysis. First, in part, ORS 198.820(1) provides
that, after a district has been approved by a county vote,
the county court or board of county commissioners “shall
enter an order establishing and forming the district.” See
also ORS 198.820(3) (“From the date of the formation order
the district shall be considered established.”).8 Second, ORS
198.782 dictates when a municipal corporation may begin
conducting business. In full, ORS 198.782 provides:
“No municipal corporation, as defined in ORS 297.405,
incorporated or formed in this state after October 3, 1979,
shall receive or disburse moneys or transact business of
8
Defendant argues that, under ORS 65.051, the district’s corporate existence did not begin until it filed its articles of incorporation. See ORS 65.051
(explaining commencement of corporate existence for nonprofit corporations).
However, the provision that defendant cites does not apply to corporations formed
under other statutes, as is the case here. See ORS 65.074(2) (“A corporation that
is subject to regulation under another statute of the state may not be incorporated under this chapter if the corporation must be organized under the other
statute.”).
44 State v. Peterson
any kind until a notice of incorporation or formation has
been filed with the Secretary of State by that corporation.”
Applying those statutes to the facts of this case,
we find no support for the state’s position that MRFD had
acquired ownership of the department property by the
time that its new chief sent defendant the demand letter
in February 2013. We recognize that the record reflects
that the district was formed and established by order of
the county court under ORS 198.820(1) in November 2012,
well before the time of defendant’s alleged crimes. Contrary
to the state’s fact-based argument, however, nothing in
the record supports the view that, in recognizing MRFD
as a formal fire protection district, the county somehow
converted—or “morphed,” to use the trial court’s term—the
voluntary department into the district or that the order
establishing the district otherwise extinguished the department as a matter of law.
Moreover, whether or not ownership of the department property vested in its individual members, there is no
dispute that the department initially owned the allegedly
stolen property.9 As the ODF employees that ran the firefighting grant programs testified, ownership and title to
equipment and supplies purchased with grant funds, as the
department property was, vests in the entity that receives
those funds. And, as the district’s board members acknowledged at trial, no action had been taken to transfer ownership or legal title from the department to MRFD before
the district demanded the equipment from defendant in
February 2013.
Furthermore, nothing in ORS 198.820(1) or in any
other provision of law that the state identifies suggests that,
in “establishing and forming the district,” the county court
or board of county commissioners somehow effected such a
9
Notably, it is undisputed that, due to the nature of the grant programs that
funded the department’s acquisition of the property at issue, ownership and title
to the property initially vested in the department. Moreover, as a member of that
voluntary, unincorporated department, defendant shared those property interests with other members of the association. See Rice, 206 Or at 242 (“[I]t must be
acknowledged that title and ownership of the property of a voluntary association
rests in the individual members, subject only to the right of enjoyment as agreed
among themselves.”). The state does not argue otherwise.
Cite as
309 Or App 31 (2021) 45
transfer from the department to the district. Finally, even
though the district existed in February 2013 by virtue of the
2012 order recognizing its formation, it was incapable of conducting business until January 2014, when it filed its articles of incorporation. See ORS 198.782. Thus, to the extent
that the state argues that the district somehow acquired
property interests independently of the order establishing
it, we see nothing in the record or the law to support that
theory. That is, the state does not argue that a legal entity
that, by law, cannot engage in business transactions can
nonetheless acquire ownership of property from another
entity, even assuming that it could otherwise own property,
a matter we need not decide.
As noted, the state does not directly address defendant’s legal argument in contending that defendant stole
from MRFD. 309 Or App at 40-41. Rather, it contends, as
the trial court evidently understood, that the jury could have
found as a factual matter that “the informal fire department
became the district, and that defendant’s ownership interest
in the property therefore ceased when he ended his involvement with the district.” (Emphasis in original.) The state
does not explain, however, how the jury’s factual findings
can determine either the legal status of the department—
including whether it had “ceased to exist”—or the capacity
of the district to acquire property interests from the department. Thus, even if, as the state argues, defendant somehow
relinquished his property rights to the department’s equipment and vehicles by declining to continue any involvement
with the district, that would not support the state’s contention that the district acquired—either then or at some earlier, unspecified time—property interests previously vested
in defendant, which defendant then stole. As a result, no
factual finding by the jury could establish the requisite element that the property allegedly stolen and then possessed
by defendant was property of another, namely, the newly
formed district.
For similar reasons, the state’s argument that the
evidence was sufficient for the jury to find that defendant
had relinquished any right to the department property by
resigning as fire chief is also unavailing. Because, as we have
just explained, the department—not the district—owned
46 State v. Peterson
the property at the time of defendant’s alleged offenses, a
factual determination as to defendant’s involvement with
the district at that time would ultimately be immaterial.
Accordingly, the evidence was insufficient to establish every
element of aggravated first-degree theft and PSV, and the
trial court therefore erred in denying defendant’s MJOA as
to Counts 3 and 5.
Convictions on Counts 3 and 5 reversed; remanded
for resentencing; otherwise affirmed.
