State v. Slater

                                      746

   Submitted February 25; conviction on Count 1 reversed and remanded for
  entry of a judgment of conviction for theft in the third degree, remanded for
                resentencing, otherwise affirmed April 21, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   TREVOR WILLIAM SLATER,
                      Defendant-Appellant.
                   Douglas County Circuit Court
                      18CR83445; A172012
                                   

     Defendant appeals from a judgment of conviction, following a bench trial,
for aggravated theft in the first degree, ORS 164.057, and unlawful entry into
a motor vehicle, ORS 164.272. To convict a person of aggravated theft in the
first degree, the state must prove that the stolen property had a value of $10,000
or more. That value is established by “the market value of the property at the
time and place of the crime, or if such cannot reasonably be ascertained, the cost
of replacement of the property within a reasonable time after the crime.” ORS
164.115(1). On appeal, defendant argues that the trial court erred in concluding
that the market value of the stolen items was not reasonably ascertainable and in
relying on evidence of replacement value. Held: The trial court erred in concluding that the market value of the stolen items could not be reasonably ascertained,
and in concluding that it had an adequate basis to use replacement values to
establish that the stolen property was worth at least $10,000.
     Conviction on Count 1 reversed and remanded for entry of a judgment of
conviction for theft in the third degree; remanded for resentencing; otherwise
affirmed.




    William A. Marshall, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
Cite as 

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  SHORR, J.
   Conviction on Count 1 reversed and remanded for entry
of a judgment of conviction for theft in the third degree;
remanded for resentencing; otherwise affirmed.
748                                           State v. Slater

        SHORR, J.
         Defendant appeals from a judgment of conviction,
following a bench trial, for aggravated theft in the first
degree, ORS 164.057, and unlawful entry into a motor vehicle, ORS 164.272. To convict a person of aggravated theft
in the first degree, the state must prove that the stolen
property had a value of $10,000 or more. ORS 164.057. That
value is established by “the market value of the property at
the time and place of the crime, or if such cannot reasonably be ascertained, the cost of replacement of the property
within a reasonable time after the crime.” ORS 164.115(1).
Here, the trial court concluded that the market value of the
stolen items was not reasonably ascertainable and instead
relied on evidence of replacement value. On appeal, defendant first argues that the court erred in doing so, and in
denying his resulting motion for judgment of acquittal on
the theft charge, because that evidence of replacement
value was insufficient to prove that the stolen property was
worth more than $10,000. Defendant next argues that the
court plainly erred in not entering a judgment of acquittal
because the state failed to prove that defendant was criminally negligent regarding the value of the items stolen. We
agree with defendant’s first argument and reject the second. As a result, we reverse the judgment as to Count 1 and
remand for entry of a judgment of conviction for theft in the
third degree.
         When reviewing the denial of a motion for judgment
of acquittal, we view the evidence in the light most favorable
to the state to determine whether the state presented sufficient evidence from which a rational trier of fact could have
found the elements of the charged crime beyond a reasonable doubt. State v. Hedgpeth, 

, 

(2019). We recite the facts consistently with that standard of
review.
         In December 2018, victims C and T had just
returned from a family vacation and arrived home around
1:00 a.m. C decided to leave the family’s suitcases in their
SUV and left the vehicle unlocked. The next morning, many
of their suitcases were missing. The victims reported the
theft to the Douglas County Sheriff’s Office. The luggage
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contained mostly clothing, but also some personal items
such as electric toothbrushes and razors, and two laptops,
including one MacBook. The victims remotely activated an
“iCloud link system” on the MacBook that alerted them to its
GPS location. They provided the GPS information to Deputy
Williams, who arrived at the location—a parking lot—
minutes later. There were only two vehicles in the lot, and
one had a suitcase visible in the back seat. Defendant and
his girlfriend were sitting in that vehicle. Defendant admitted to entering the victims’ SUV and stealing luggage, and
deputies recovered some of the stolen property from defendant. Defendant was arrested and charged with theft in the
first degree, ORS 164.055, a Class C felony, and unlawful
entry into a motor vehicle, ORS 164.272, a Class A misdemeanor. A few days later, the theft charge was increased to
aggravated theft in the first degree, a Class B felony requiring that the state prove that the stolen property had a value
of $10,000 or more. ORS 164.057.
         The case proceeded to a bench trial in July 2019.
There, the victims presented an itemized property list of
the stolen items in the form of a spreadsheet containing 157
line items. The victims also testified about some of the stolen items.1 The property list included several souvenirs and
Christmas gifts that had been purchased on the vacation
and that were relatively new at the time they were stolen.
For instance, C testified that the luggage contained a blue
Invicta watch that had been purchased days before the theft.
Other items, such as articles of men’s clothing from REI and
an Adrianna Papell bridesmaid dress, were purchased right
before the family left on vacation, had only been worn once,
and had never been laundered. Many of the items had been
purchased new in the preceding months and years before
the theft. In discussing the stolen clothing, T testified that
“[m]ostly everything was new to up to maybe two years old
for my kids or myself.” For example, articles of Matilda Jane
clothing were less than three months old at the time of the

    1
      The vast majority of the stolen items were never individually discussed or
described during the trial testimony. Outside of a few select items and brands,
most of the testimony discussed the stolen items in general terms. For those items
that were never individually discussed via testimony, the itemized property list
admitted as State’s Exhibit 12 was the only evidence describing those items.
750                                                 State v. Slater

theft. A white suitcase had been purchased five months
before the theft. A silver Armani watch had been purchased
“within a year.” Several pairs of Lululemon leggings were
purchased new “within the year” or “up to 18 months” before
the theft. Other items were older. For instance, a Dakine
duffel bag embroidered with the insignia of C’s old wrestling
team was decades old. Overall, however, the victims testified that most of the items were in “[v]ery good and almost
new condition.”
         The state presented evidence to prove that the stolen
luggage and its contents had a combined value of $14,411.90.
That evidence was admitted through the itemized property
list prepared by the victims, which meant to express the
value of the stolen goods via a column titled “Replacement
Value.” C testified that the couple created the list as part
of an insurance claim that was never filed. T provided the
principal testimony regarding how the replacement values
had been determined:
      “Q. … So how did you come to … the replacement
   values on this list?
      “A. Well, being a Roseburg resident, I shop online a lot
   because we don’t have a lot of options. … I have electronic
   receipts for a lot of my items. If I didn’t have an electronic
   receipt or a physical receipt, I did a web search to try to buy
   the item again today and what would it cost me to do that.
      “Q. And were you looking for used, used versions of
   stuff, as well as new versions of stuff?
       “A. I mean I mostly looked at it from the frame of if
   I were to replace my thing that I need again what would
   it cost. If there was years of wear on something, I think I
   would have used that or taken that into consideration.
      “Q. Okay.
      “A. I tried to be fair about it. But mostly, I looked at it
   from the point of if I were to buy this again for myself what
   would I pay.”
Because the family’s MacBook laptop had been purchased
in a “newly refurbished” condition, the replacement value for
that item referenced another certified refurbished laptop.
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T was asked about the Dakine duffel bag that had been
embroidered for C’s old wrestling team:
     “Q. —wrestling. So how did you come to the value for
  that item, specifically?
      “A. I found a comparable Dakine duffel bag, a new
  bag. So of course, if you were to buy a new bag, it would be
  newer. So it would have more value. But it wouldn’t be custom insigne. So I guess you would lose some value there. So
  I just tried to find a replicable item to replace it right now.”
T testified further regarding how she arrived at the values
in the spreadsheet generally:
     “Q. But did you do your best to look at fair market
  value?
     “A. I mean I guess it would depend on the item. But I,
  the lens that I created this with at the time was if I were to
  go and buy it again right now.
     “Q. Okay.
     “A. And I don’t buy used clothing. So I wouldn’t go and
  replace it with used clothing.”
The trial court asked T about the used clothing market
specifically:
      “Q. … For used clothing, can you tell by, the quality
  of the used clothing by looking online?
     “A. The quality of used clothing, I mean—
     “Q. How, how worn it is.
     “A. I guess to some extent but—
    “Q. And, and is there a market for used clothing for
  much of the—
      “A. Actually, yes. So a lot of these brands, Matilda
  Jane, Lululemon and a lot of them that we’re talking about,
  there is a resale market value. So you can find groups on
  Facebook, for example, where people sell them maybe at 50
  to 60 percent of retail. So there is some, yes, aftermarket on
  a lot of these brands.
     “Q. And, and did you take—
     “A. And eBay. And you could do that too.
752                                               State v. Slater

      “Q. Did you take that into consideration when you
   were setting these values?
      “A. I looked at my own receipts and what I paid for or
   that I would need to replace my item. I don’t shop used, so I
   didn’t put used items on this list.”
T was later recalled and questioned further regarding the
used clothing market:
       “Q. Okay. Now, when you’re buying those items for 50,
   for 50 or 60 percent off through whatever venue, and that
   would be eBay, Facebook Marketplace or whatever the case
   may be, would those items be in new condition?
      “A. No.
      “Q. Would they be in like new condition?
      “A. No.
       “Q. Would they be replacements for what you have
   lost?
      “A. No. My items were much newer than the items
   that would be for sale at that reduced rate.”
T further confirmed that there were secondary markets for
vintage designer clothing and like-new clothing that had
only been worn once or twice.
         At the close of the evidence, defendant moved for a
judgment of acquittal on the aggravated theft charge, arguing that the state had failed to present sufficient evidence
of the $10,000 value element. Specifically, defendant argued
that the state had not established that the fair market value
for the stolen property was not reasonably ascertainable,
and that therefore the state could not rely on replacement
value to prove the value element. The state responded that
the victims’ testimony and itemized spreadsheet were sufficient evidence of the $10,000 value element and that reference to replacement value was appropriate in this case. The
state argued that
   “[t]he testimony from the witness was that the items that
   are available on those resale markets are not equivalent
   items. That the items that are sold on those resale markets are not the same as the items that were stolen from
   her. So we don’t believe that there is that secondary market
Cite as 

 (2021)                                  753

   that exists. And so we do believe that replacement value is
   appropriate.”
         The court denied defendant’s motion, stating:
   “[T] described that these items, although … they might be
   available on eBay or some other online source in a used condition, that one cannot rely that they are, would be in the
   similar condition. And, and they would be unable to ascertain that, perhaps, online as to what the condition was of
   these items. And, and thus, the value of the items, without
   having been in hand.
      “…
       “And here, the testimony is that these are like new
   items. That the victims in this case attempted to ascertain the value. They have, for many of the items, original
   receipts, either electronic or paper copies. And, … you
   can’t, I don’t know how one would determine the condition
   of clothing items without having it in your hand to ascertain what the condition of that … online source or the, of
   a used item would be without having it in your hand.
       “There is no ready local market. The testimony was
   there is no local market for the kinds of items that are
   here, either new or used. And so I think that the State has
   shown, to the level required, that there is no way to reasonably ascertain the market value of the items that were
   taken. And so replacement cost is what you rely on. There
   is testimony certainly sufficient to take it over the $10,000
   threshold here.”
Defendant was convicted as charged. This timely appeal
followed.
          Defendant assigns error to the trial court’s denial of
his motion for judgment of acquittal on the aggravated first-degree theft charge. Repeating the argument that he raised
in the trial court, defendant asserts that the state presented
insufficient evidence to establish that the fair market value
of the stolen property was not reasonably ascertainable.
Thus, “the state could not rely on replacement value” and,
therefore, failed to present sufficient evidence that the stolen property was worth at least $10,000. The state makes
two arguments in response. First, referencing State v.
G. L. D., 

, 

 (2012), rev den,
754                                               State v. Slater

 (2013), the state argues that it did indeed submit sufficient evidence of the fair market value of the stolen
items, because “the original or replacement cost of property,
coupled with other contextual information” may be used
to determine market value. Second, the state argues that,
even if the evidence was insufficient to establish fair market
value, it was nonetheless sufficient to show that fair market
value was not reasonably ascertainable.
          We turn to our analysis of the relevant law. To prove
that the stolen property had a value of $10,000 or more, the
state had to establish that amount by evidence of “the market value of the property at the time and place of the crime,
or if such cannot reasonably be ascertained, the cost of
replacement of the property within a reasonable time after
the crime.” ORS 164.115(1). Market value is “ ‘what a willing
buyer will pay a willing seller.’ ” State v. Mays, 

, 

 (2018), rev den, 

 (2019)
(citing G. L. D., 

). In other words, market
value is the price at which the property could have been sold
at the time and place it was stolen. State v. Callaghan, 

, 

, rev den, 

 (1978) (in the
context of property stolen from a wholesaler, “the price at
which the wholesaler offers to sell it ordinarily reflects its
market value”). Alternatively, the value of stolen goods may
be determined by the cost to replace those goods. But use
of that metric is strictly limited. “To rely on replacement
value as the fallback[,] the state must present evidence that
it is not possible to ascertain market value to a reasonable
certainty by an investigation that is reasonable under the
circumstances.” Mays, 

. Various factors
may create a situation where it is not possible to reasonably
ascertain market value:
   “A reasonable trier of fact may determine that an item’s
   market value cannot reasonably be ascertained even if there
   is evidence of a known marketplace for the item if there is
   evidence that the marketplace is not sufficiently reliable to
   provide a valuation to a reasonable certainty. Among other
   reasons, the marketplace may be so small or erratic that a
   market price cannot reasonably be ascertained.”

.
Cite as 

 (2021)                                 755

         We first consider the state’s argument that it presented sufficient evidence of the fair market value of the
stolen items, because “the original or replacement cost of
property, coupled with other contextual information” may
be used to determine fair market value. In so arguing, the
state refers us to G. L. D., where we concluded that the trial
court properly considered evidence of replacement value as
a factor in determining market value. 

.
         That is not what happened here, however. Defendant
moved for a judgment of acquittal, arguing that the state
had not met its burden to show that the market value of
the stolen goods was not reasonably ascertainable, and that
reliance on replacement value was thus impermissible. In
response, the state never articulated that defendant misunderstood the role of the replacement value evidence. Instead
the state argued that
   “[t]he testimony from the witness was that the items that
   are available on those resale markets are not equivalent
   items. That the items that are sold on those resale markets are not the same as the items that were stolen from
   her. So we don’t believe that there is that secondary market
   that exists. And so we do believe that replacement value is
   appropriate.”
(Emphasis added.) Finally, the trial court was clear that
it was not attempting to evaluate market value and was
instead turning to “the fallback” method for proving value:
“[T]he State has shown, to the level required, that there is
no way to reasonably ascertain the market value of the items
that were taken. And so replacement cost is what you rely
on.” In effect, the state’s argument asks us to affirm the case
as “right for the wrong reason” without providing us with
an argument as to why it is appropriate for us to do so. See
Outdoor Media Dimensions Inc. v. State of Oregon, 

, 

 (2001) (discussing conditions that
must be met for reviewing court to affirm on an alternative
basis); State v. Shields, 

, 

(2021) (declining to consider the state’s proffered alternative
basis to affirm when it neither addressed the Outdoor Media
Dimensions Inc. conditions nor explained why this court
should exercise its discretion). In any event, we decline to
exercise our discretion to affirm on that alternative basis
756                                                State v. Slater

because the record might have developed differently had the
state raised that issue below. See Outdoor Media Dimensions
Inc., 

 (requiring that the record must be
materially the same as what would have developed had the
alternative basis been raised below).
         We turn to the question of whether the trial court’s
reliance on replacement value was supported by sufficient
evidence. As we explained earlier, reliance on replacement
value is only appropriate when “it is not possible to ascertain market value to a reasonable certainty by an investigation that is reasonable under the circumstances.” Mays, 

. Market value in this case would have been
what a prospective buyer would have been willing to pay
to purchase the victims’ clothing, personal items, electronics, and other assorted items at the time and place of the
crime, when each item was anywhere from relatively new to
decades old. The court heard that the victims had purchased
nearly all the items in new condition at various points over
the previous days, months, and years, and that many of the
items were in very good or almost new condition. The court
also heard that some of the brands at issue were resold at
“50 to 60 percent of retail,” but that the victims did not purchase used clothing. T added that items available at that
reduced rate would not be as new or in as good condition as
the stolen items. Finally, T testified that people did resell
like-new used clothing.
         Even considering that evidence in the light most
favorable to the state, the trial court erred by utilizing
replacement value because there was insufficient evidence
to conclude that market value was not reasonably ascertainable. The state did not reasonably investigate the market value of the items when stolen, particularly the vast
majority of items that were not brand new. The victims, who
presented the only evidence of value in this case, testified
that they did not investigate the market value of their used
items:
      “Q. But did you do your best to look at fair market
   value?
      “A. I mean I guess it would depend on the item. But I,
   the lens that I created this with at the time was if I were to
   go and buy it again right now.
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      “Q. Okay.
      “A. And I don’t buy used clothing. So I wouldn’t go and
   replace it with used clothing.”
The victims only investigated the cost of new replacements,
because they did not desire comparable used replacements,
not because there was no market for such comparable items.
Even crediting T’s testimony that used clothing that sold
for 50 to 60 percent of retail was not of comparable quality
to the stolen items, T later agreed that there was a secondary resale market for clothing that had only been worn once
or twice. That testimony illuminated that a segment of the
used clothing market existed that consisted of higher quality or like-new pieces that would presumably be in the same
or perhaps even better condition than many of the stolen
items. But there was no evidence presented as to why that
like-new segment of the used clothing market should not be
used as a basis for determining market value.
         Those facts distinguish this case from Mays. In
Mays, we concluded that there had been sufficient evidence
for the trial court, sitting as factfinder, to use replacement
value in valuing used climbing gear. 

.
Evidence was presented that, despite the existence of a used
climbing gear resale market, competent climbers never
purchased used climbing gear because of the difficulty of
assessing the gear’s condition and the safety risks presented.

. We concluded that there had been sufficient evidence for the court to use replacement value, because “there
was a limited and unreliable market for used climbing gear
that could not reliably be sold for its designed function, protecting the safety of climbers, because the gear’s degradation was not knowable.” 

 That was sufficient to establish
that the market value of the gear could not reasonably be
ascertained. 

.
        Here, there was no evidence from which the trial
court could have disregarded the like-new used clothing
market as “limited” or “unreliable,” because the court had no
evidence of that market other than the fact that it existed.
And, to the extent that the court relied on its conclusions
that there was “no ready local market” and that the online
used clothing market was unreliable because one could not
758                                              State v. Slater

“determine the condition of clothing items without having it
in your hand,” those conclusions were not supported by the
evidence. T testified that there was a market for like-new
clothing, and that one could tell the quality of used clothing
sold online at least “to some extent.” Absent evidence that
the state had made a reasonable investigation into what the
stolen items would have been valued on the marketplace at
the time and place of the crime, the court erred in concluding that the market value of the stolen items was not reasonably ascertainable.

         We must affirm a judgment, despite any error committed at trial, if there is little likelihood that error affected
the verdict. State v. Lachat, 

, 589, 

 (2019), rev den, 

 (2020). Despite the fact that
the state presented evidence that the stolen items had a
replacement value of $14,411.90, the market values for the
stolen items may have been ascertainable, and those market
values may have failed to total at least $10,000. The trial
court’s error was therefore not harmless.

         Defendant raises a second and unpreserved argument that the state failed to present sufficient evidence that
defendant had a culpable mental state as to the value of the
stolen property. Requesting plain-error review, defendant
argues that the state must prove that a defendant was at
least criminally negligent as to the value of stolen property,
because value is a material element of theft, and, under ORS
161.095(2), a person must act with a culpable mental state
with respect to each material element. Defendant acknowledges that this case is controlled by State v. Morales, 

, 

 (2019), rev den, 

 (2020),
in which we, relying on State v. Jones, 

, 

 (2008), rev den, 

 (2009), rejected that same
argument. As in Morales, we decline defendant’s invitation
to overrule Jones and its progeny. We also note that we considered and rejected a similar argument—the argument
that Jones is not incompatible with a requirement that the
state prove criminal negligence with respect to value—in a
different case in the time since defendant filed his opening
brief. State v. Stowell, 

, 

(2020). We adhere to those cases here.
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          We now turn to the issue of what result is appropriate on remand. To summarize, the state failed to present sufficient evidence for the trial court to conclude that
the market value of the stolen items could not be reasonably
ascertained, and the court did not have an adequate basis
to use replacement values to establish that the stolen property was worth at least $10,000. Accordingly, the court erred
when it denied defendant’s motion for judgment of acquittal
on Count 1. However, we have authority under Article VII
(Amended), section 3, of the Oregon Constitution2 to direct
entry of a lesser-included offense that we determine should
have been entered by the trial court—in other words, where
there is insufficient evidence to support the defendant’s conviction for the charged offense, but where the state proved
all the elements of a lesser-included offense that is subsumed in the charged offense. State v. Pittman, 

, 

 (2016); see also State v. Madison,

, 

 (2020) (remanding for
entry of attempted promoting prostitution following reversal of trial court’s denial of a motion for judgment of acquittal as to promoting prostitution); State ex rel Juv. Dept. v.
H. S., 

, 

 (2010) (remanding
for entry of third-degree theft following reversal of juvenile
court’s denial of a motion for judgment of acquittal as to
second-degree theft where state did not prove value element
of charged crime).
         Although the parties do not address on appeal
whether defendant should be convicted of some lesser-included offense, the record and evidence readily support
the conclusion that the state proved every element of the
charged offense except the value element. Aggravated first-degree and first-degree theft are no different from the lesserdegree theft offenses at issue in H. S. in that they differ
only in the value of the stolen property at issue. See State v.
Waterhouse, 

, 

 (2016) (comparing

   2
     Article VII (Amended), section 3, provides, in part:
   “[I]f, in any respect, the judgment appealed from should be changed, and
   the supreme court shall be of opinion that it can determine what judgment
   should have been entered in the court below, it shall direct such judgment
   to be entered in the same manner and with like effect as decrees are now
   entered in equity cases on appeal to the supreme court.”
760                                                           State v. Slater

theft offenses).3 Therefore, we may direct entry of a lesserdegree theft conviction here, if the state indeed proved all
the elements of that offense. However, the state’s erroneous
use of replacement value makes it impossible for us to say,
without relying on impermissible speculation, whether the
stolen property in this case met the particular value thresholds for first- or second-degree theft. The state must prove
stolen property had a total value of $1,000 or more to convict
for first-degree theft, or $100 to $1,000 to convict for second-degree theft. ORS 164.055(1)(a); ORS 164.045(1)(b). Here, the
only evidence of value for many of the stolen items was the
replacement value listed in the itemized spreadsheet, with
no evidence of the specific age of the items, their condition,
or their depreciation since purchase, if any. And, even when
certain items were described in greater detail via testimony,
there was still no evidence from which one could determine whether those items had fully retained the market
value they possessed when first purchased. Such evidence
is insufficient to prove the value element of either first- or
second-degree theft, absent significant speculation. At the
time of defendant’s crimes, ORS 164.115(5) directed that, if
the precise value of stolen property could not be reasonably
ascertained, the property was presumed to have a value of
less than $50. ORS 164.115(5) (2017), amended by Or Laws
2019, ch 399, § 5 (amended to presume an increased value
of “less than $100”). Applying that presumption, the state
presented sufficient evidence to support defendant’s conviction for theft in the third degree, or theft of property having
some value less than $100. See ORS 164.043(1)(b) (value of
property must be “less than $100”); Waterhouse, 

 (at minimum property must have “some value,” although
exact worth immaterial). Therefore, we reverse and remand
for entry of a judgment of conviction for the lesser-included
offense of theft in the third degree, ORS 164.043.
          Conviction on Count 1 reversed and remanded
for entry of a judgment of conviction for theft in the third
degree; remanded for resentencing; otherwise affirmed.
     3
       We acknowledge that ORS 164.055 provides for several alternative forms of
first-degree theft that do not conform to this generalization, including, for example, theft of a firearm. ORS 164.055(1)(d). However, those alternative forms of
first-degree theft are irrelevant to the facts of this case, and we therefore omit
them from our discussion.