27
Argued and submitted July 16, 2020, affirmed June 3, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DIONNE MECHELE DILLARD,
Defendant-Appellant.
Curry County Circuit Court
18CR34644; A168932
490 P3d 176
Defendant was involved in taking merchandise from a Fred Meyer store
without paying for it. A jury returned a verdict of guilty for first-degree theft for
taking property with an aggregate value of “$1,000 or more,” ORS 164.055(1)(a).
On appeal, defendant contends that the evidence is insufficient to support a finding that the property she took had a value of $1,000 or more because some of
the stolen items could have been on sale when she took them. She argues that
the trial court should have granted her motion for judgment of acquittal on that
basis. Defendant also assigns plain error to the court’s failure to issue a curative instruction or declare a mistrial in response to part of the prosecutor’s closing argument. Held: The trial court did not err. It was properly a jury question
whether the aggregate base price of the stolen items was the price that those
items could have been sold for at the time that they were taken. As for the prosecutor’s closing argument, any error was not obvious.
Affirmed.
Cynthia Lynnae Beaman, Judge.
John Evans, 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.
Daniel Norris, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Julia Glick, Assistant Attorney General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Affirmed.
28 State v. Dillard
LAGESEN, P. J.
Defendant was involved in taking a large amount
of property from a Fred Meyer store without paying for it.
That conduct resulted in her conviction, by a jury, for first-degree theft for taking property with an aggregate value
of “$1,000 or more,” ORS 164.055(1)(a). On appeal, she contends that the evidence is insufficient to support a finding
that the property she took had a value of $1,000 or more
and that the trial court should have granted her motion for
judgment of acquittal on that basis. She also contends that
the court plainly erred by not remedying allegedly improper
argument by the prosecutor with a curative instruction or
mistrial and by instructing the jury that it could return a
nonunanimous verdict. We affirm.
Motion for judgment of acquittal. We review a trial
court’s “denial of a motion for a judgment of acquittal for
legal error, and we consider the facts in the light most favorable to the state and draw all reasonable inferences in the
state’s favor.” State v. Payne, 310 Or App 672, 674,
487 P3d
413 (2021). Here, defendant contends that she was entitled
to judgment of acquittal because, in her view, the evidence
was not sufficient to support a finding that the value of the
property she took was $1,000 or more.
To prove that defendant committed first-degree
theft as charged in this case, the state had to prove that the
value of the property taken from Fred Meyer was “$1,000
or more.” ORS 164.055(1)(a). Value, for purposes of ORS
164.055(1)(a), means “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, in turn, “is the price at which the property
could have been sold at the time and place it was stolen.”
State v. Slater, 310 Or App 746, 754,
487 P3d 59 (2021). In
the case of merchandise stolen from a retailer, market value
may be proved by evidence of the price at which the retailer
offered to sell the merchandise. State v. Pulver,
194 Or App
423, 428,
95 P3d 250, rev den,
337 Or 669 (2004). That is
because such evidence tends to show the value of the merchandise “in trade.” Id. at 427.
Cite as
312 Or App 27 (2021) 29
To prove market value in this case, the state called
the store’s asset protection specialist, Meccia. Meccia testified that, after the store’s property was recovered from
defendant, he “returned to the asset protection office with
the merchandise we were able to identify to come up with a
valuation.” He did so, in general,1 by scanning the universal
price codes on the items that defendant had taken to identify the current prices for those items:
“Basically … in the asset protection office we have a
computer terminal that has a scan gun, a laser scan gun,
that we can scan a UPC, universal price code, and it will
pull up the base price for that item for that day, for that
week, whenever they update the prices.”
The prices identified through this process were the “standard code price[s].” If the price for an item was discounted,
the discounted price would “[n]ot necessarily” pop up. For
example, if a coupon was available, the coupon price would
not pop up “because we’re not using a coupon.” Through that
process, Meccia determined that the prices of the various
items taken added up to $1,002.96.
Pointing to Meccia’s testimony that his process
would “[n]ot necessarily” pull up discounted prices for the
items, defendant contends that the state’s evidence is insufficient to support a finding of the market value of the items
taken. In defendant’s view, the state had to prove what
each item was actually priced on the date of defendant’s
crime, something that required proof that each item was
priced at the standard price on the date of the theft and not
discounted.
That is not the standard. What the state must prove
“is the price at which the property could have been sold at
the time and place it was stolen.” Slater, 310 Or App at 754
(emphasis added); State v. Callaghan,
33 Or App 49, 58,
576
P2d 14, rev den,
284 Or 1 (1978) (to prove market value of
stolen merchandise for purpose of theft statutes, state must
prove “the price at which they would probably have been sold
in the regular course of business at the time when and place
1
Defendant took one item that was not for sale; Meccia used a different
methodology for that item. Defendant does not suggest that that fact has any
bearing on this appeal.
30 State v. Dillard
where they were stolen” (internal quotation marks omitted)).
Here the evidence presented by the state of the standard
prices for the stolen merchandise at the time of the theft
is legally sufficient to make that showing. An “item’s price
provides prima facie proof of its value … because the asking price is itself a basis from which to determine its value
in trade.” Pulver, 194 Or App at 427. That certain items
may or may not have been temporarily discounted at the
time of a theft does not change that. That is because, even
accepting the possibility of a temporary discount, it would
not be unreasonable for a factfinder to infer that an item
could have been sold, and probably would have been sold, at
its regular price, such that the regular price represents the
item’s value in trade.
Of course, as defendant ultimately did here, a defendant can urge a jury to have doubt about a prima facie case on
the ground that the items stolen may or may not have been
available at discount, and, in the face of such an argument,
a jury might well have reasonable doubt about whether to
find that the regular prices represent what the items could
have been sold for. But a reasonable jury could also conclude,
based on evidence of the items’ usual prices, that those were
the prices that the items probably would have sold for in the
usual course of business. In other words, how much weight
to give the evidence of the items’ base prices on the date
of the theft, in the absence of evidence of what temporary
discounts may or may not have been in effect, was the province of the jury; a jury could reasonably find those prices
indicative of value or reasonably reject them as indicative of
value. Consequently, the trial court correctly concluded that
the evidence of value presented by the state was sufficient
to raise a jury question on that point and properly denied
defendant’s motion for judgment of acquittal.
Closing argument. In her second assignment of
error, which is not preserved, defendant contends that the
trial court plainly erred when it did not sua sponte declare a
mistrial or take other curative action in response to the prosecutor’s argument on rebuttal that there was “no testimony
that any of [the stolen] items were on sale, so I don’t think
that really matters.” Defendant contends that that rebuttal
argument, which responded to defendant’s argument that
Cite as 312 Or App 27 (2021) 31
the jury should doubt the valuation because it did not necessarily take into account discounts or sale prices, improperly
stated the law and shifted the burden of proof to defendant,
requiring the trial court to intervene absent an objection
from defendant.
“For an error to be plain error, it must be an error
of law, obvious and not reasonably in dispute, and apparent
on the record without requiring the court to choose among
competing inferences.” State v. Vanornum, 354 Or 614, 629,
317 P3d 889 (2013). Having reviewed the prosecutor’s argument in context, it is not obvious to us that the argument
exceeded the scope of appropriate rebuttal or had the effect
of misstating the burden of proof. We therefore reject defendant’s contention that the trial court plainly erred in its
handling of the prosecutor’s argument.
Nonunanimous jury instruction. Finally, defendant
assigns as plain error the trial court’s instruction to the
jury that it could convict by a 10-2 verdict. The jury was not
polled. Although the trial court’s instruction was erroneous,
we decline to exercise our discretion to correct it for reasons
similar to those stated in State v. Dilallo, 367 Or 340, 346-48,
478 P3d 509 (2020).
Affirmed.
