372
Argued and submitted October 7, 2021, reversed and remanded
February 9, petition for review denied June 2, 2022 (369 Or 785)
STATE OF OREGON,
Plaintiff-Respondent,
v.
TRAVIS LEE BRADY,
Defendant-Appellant.
Washington County Circuit Court
19CR31931; A173201
506 P3d 1180
Defendant appeals a judgment of conviction—by a 10-2 jury—for one count
of first-degree theft, ORS 164.055. Both parties agree that defendant is entitled
to a reversal of the judgment because the jury was not unanimous. Defendant
also appeals a denial of his motion for judgment of acquittal, contending that
the evidence of his deal with the pawnshop is insufficient to permit a finding
that he committed theft by “selling” a bicycle “knowing that the property was
the subject of theft.” The evidence at trial showed that defendant arranged for a
drop loan from the pawnshop, that the period for reclaiming the bicycle had not
expired when defendant was apprehended, and that defendant had a history of
not reclaiming stolen property under similar arrangements. Held: The evidence
at trial allowed a factfinder to infer that defendant disposed of the bicycle by
giving it to the pawnshop in exchange for money, thereby engaging in the process
of selling it, even if the sale had not yet been completed under the terms of the
parties’ transaction at the time defendant was apprehended. The lack of a unanimous jury verdict, however, required reversal and remand.
Reversed and remanded.
Eric Butterfield, 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.
Christopher Page, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
LAGESEN, C. J.
Reversed and remanded.
Cite as 317 Or App 372 (2022) 373
LAGESEN, C. J.
Defendant appeals a judgment of conviction—by a
10-2 jury—for one count of first-degree theft, ORS 164.055.
The indictment alleged that defendant committed the theft
by “selling” a bicycle “knowing that the property was the
subject of theft.” The evidence at trial showed that defendant pawned the stolen bicycle for $60, that the period for
reclaiming the bicycle from the pawnshop had not expired
at the time that defendant was apprehended, and that
defendant had a history of pawning stolen property and not
reclaiming it. On appeal, both parties agree that defendant
is entitled to a reversal of the judgment because the jury
was not unanimous. Defendant, however, also argues that
the trial court erred in denying his motion for judgment of
acquittal, contending that the evidence of his deal with the
pawnshop is insufficient to permit a finding that he committed theft by “selling” the bicycle. Therefore, in defendant’s
view, we must reverse the conviction outright instead of
reversing and remanding for a new trial. We disagree on
that point and, accordingly, reverse and remand.
The relevant historical facts are not disputed. Defendant pawned a stolen bicycle in exchange for $60. Under the
terms of defendant’s deal with the pawnshop, the transaction was not an outright sale. Rather, it was documented
as a drop loan, which gave defendant 90 days to repay the
money if he wanted to reclaim the bicycle. If he did not, then
the bicycle would be placed in the pawnshop’s inventory. On
at least three other occasions, defendant had pawned bicycles with the same shop in transactions structured the same
way. Defendant never paid back the pawnshop and never
reclaimed the property.
For the act of pawning the stolen bicycle for $60, the
state charged defendant with one count of first-degree theft
under ORS 164.055. The indictment alleged that defendant
committed the crime by “selling” the stolen bicycle:
“The defendant, on or about April 1, 2019, in Washington
County, Oregon, did unlawfully and knowingly commit
theft of a bicycle, the property of [the victim], by selling
the property, defendant knowing that the property was the
subject of theft.”
374 State v. Brady
Defendant exercised his right to try the case to a
jury. At the close of the state’s case, he moved for a judgment
of acquittal. He argued that there was insufficient evidence
that he committed theft by “selling” the bicycle, because the
facts showed that his transaction with the pawnshop was
a loan. In response, the state asserted that it was inferable
from defendant’s history of never reclaiming pawned property that he was not going to reclaim that bicycle and, thus,
was selling the bicycle for purpose of ORS 164.055. The trial
court denied the motion. Ultimately, the jury found defendant guilty by a 10-2 verdict. Defendant appeals.
As noted, it is undisputed that we must reverse
defendant’s conviction because the verdict was nonunanimous, in violation of defendant’s rights under the Sixth and
Fourteenth Amendments to the United States Constitution.
Ramos v. Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed 2d
583 (2020); State v. Ulery,
366 Or 500,
464 P3d 1123 (2020).
What is disputed on appeal is whether the evidence is sufficient to find defendant guilty as charged with “selling” stolen property in violation of ORS 164.055. That presents a
question of law, namely, whether a person who enters into a
transaction like the one at issue here, under circumstances
in which it is reasonably inferable that the person will not
reclaim the pawned property, is “selling” property within
the meaning of ORS 164.055. To answer that question of
statutory construction, we consider the statute’s “text, in
context, and, where appropriate, legislative history and
relevant canons of construction.” Chase and Chase,
354 Or
776, 780,
323 P3d 266 (2014). The objective is “to determine
the meaning of the statute that the legislature that enacted
it most likely intended.”
Id. Ultimately, as we explain, we
conclude that “selling” for purposes of ORS 164.055(1)(c)
includes the act of disposing of property by entering into a
transaction that will result in its sale, even if, as here, the
evidence would not allow a finding that the sale has been
finalized at the time the defendant is apprehended.
The text of ORS 164.055 provides, in relevant part,
that a person commits first-degree theft if they commit
“theft by receiving committed by buying, selling, borrowing
or lending on the security of the property.” ORS 164.055(1)(c).
Pertinent to this case, “[a] person commits theft by receiving
Cite as 317 Or App 372 (2022) 375
if the person … disposes of property of another knowing
or having good reason to know that the property was the
subject of theft.” ORS 164.095(1). The issue, then, is whether
by disposing of the bicycle in the way that he did, defendant
disposed of it by “selling” it.
In defendant’s view, the fact that the statute specifically prohibits “borrowing … on the security of the
property” implies that the legislature did not intend that
his conduct, which was structured as a loan transaction,
would qualify as “selling” the bicycle. The state, in response,
points out that the ordinary meaning of the word “sell” is
“ ‘to give up (property) to another for money or other valuable consideration’ and ‘to give up in return for something
else.’ ” (Quoting Webster’s Third New Int’l Dictionary 2061
(unabridged ed 1993).) That definition, according to the
state, shows that defendant engaged in “selling” when he
traded the bicycle for money, especially in view of the evidence of defendant’s prior conduct of not reclaiming pawned
items.
The legislature did not define the word “selling” for
purpose of ORS 164.055(1)(c), but the word is an ordinary
one and we generally presume that the legislature intends
for ordinary words to have their ordinary meanings. State
v. Jones, 286 Or App 562, 566,
401 P3d 271 (2017). “Sell,” as
noted, means “to give up (property) to another for money or
other valuable consideration” and “to give up in return for
something else.” Webster’s Third New Int’l Dictionary 2061
(unabridged ed 2002).1 “Selling,” similarly, is defined as “the
act, process, or art of offering goods for sale.” Id. at 2062.
Although those definitions are broad, and arguably could
encompass some transactions—such as returning stolen
merchandise to its lawful owner in exchange for money—the
1
We note that the state cited the 1993 edition of Webster’s and we have cited
the 2002 edition of Webster’s. As explained in State v. James, that difference in
dates is immaterial for the purpose of construing statutes dating back to 1961:
“Because the content of Webster’s—excluding the addenda section—has remained
static since 1961, in general, it is appropriate to treat it as a contemporaneous
source for statutes dating from at least that point forward, taking into account
the updates to word usage reflected in the addenda section when the circumstances so require.” 266 Or App 660, 668 n 3,
338 P3d 782 (2014). Here, the operative wording of ORS 164.055(1)(c) dates to 1971. See State v. Fonte,
363 Or 327,
347,
422 P3d 202 (2018) (discussing history of provision).
376 State v. Brady
Supreme Court has held that the term does not encompass
all exchanges of goods for money. Instead, “selling” covers
the giving up of stolen property for money with a third party
(that is, someone other than the property’s owner) “in the
market for stolen goods.” State v. Fonte,
363 Or 327, 348,
422
P3d 202 (2018).
Applying that definition here, the evidence would
allow for a finding that defendant committed theft by receiving by “selling” the bicycle if it allows for the finding that he
disposed of the bicycle by giving it up for money or through
the process of exchanging it for money with a third party
in the market for stolen goods. The evidence allows for that
finding. In particular, given the evidence of defendant’s prior
transactions with the pawnshop, each of which resulted in
defendant giving up to the pawnshop the property he hocked
in exchange for the upfront payment he received, a factfinder
could infer that defendant disposed of the bicycle by giving
it to the pawnshop in exchange for money, thereby engaging
in the process of selling it, even if the sale had not yet been
completed under the terms of the parties’ transaction at the
time defendant was apprehended.
In arguing for a contrary result defendant, as noted,
focuses on the fact that the statute separately prohibits
“borrowing … on the security of the property.” From that,
he reasons that the legislature did not intend for his conduct
to constitute “selling,” otherwise there would be no reason
for the legislature to separately mention the prohibition on
borrowing.
We do not disagree with that line of argument. If the
only evidence in this case was that defendant had entered the
transaction that he did, it would be difficult to conclude that
defendant was engaged in “selling” the stolen bicycle. That
is, we agree, as a general matter, that borrowing against
collateral is not the same thing as selling the collateral, and
we do not think that the legislature likely viewed the conduct as the same either. The problem for defendant in this
case is that the evidence of his past conduct of never coming
back for the property he pawned would allow for a reasonable factfinder to find, as a factual matter, that defendant
was selling the property when he gave it to the pawnshop
Cite as 317 Or App 372 (2022) 377
in exchange for money, and not simply borrowing against
collateral. That the property was, in fact, stolen would reinforce that finding, to the extent it reinforces the inference
that defendant was never going to return to reclaim the stolen property once he had used it to obtain cash, and that the
transaction, in the end, was destined to be a sale.
Defendant also argues that it is not inferable that
he was selling the bicycle because, under the terms of the
parties’ transaction, at the time he was apprehended, he
retained the right to retrieve the bicycle and the pawnshop
lacked the right to take title to the bicycle (setting aside the
fact that defendant did not have title to give). But we do not
read ORS 164.055(1)(c) to require a completed sale for a person to have committed the crime of theft by receiving by
“selling” stolen property. The legislature opted to use the
word “selling” in ORS 164.055(1)(c), a word with an ordinary
meaning that embraces the notion of an ongoing process.
See Webster’s at 2062; see also Fonte, 363 Or at 340 (noting
the defendant’s argument “that the legislature’s use of the
gerund form [in ORS 164.055(1)(c)] suggests that it intended
to refer to a defendant’s continuing conduct (that is, being
engaged in buying, selling, lending, or borrowing) rather
than a single point in time”). That indicates to us that the
legislature intended to treat as “selling” a defendant’s act
of disposing of property by entering into a transaction that
will result in its sale, even if, as here, the evidence would not
allow a finding that the sale has been finalized at the time
the defendant is apprehended.
For those reasons, the trial court properly denied
defendant’s motion for judgment of acquittal and defendant is not entitled to an outright reversal of his conviction.
As previously explained, we nevertheless must, however,
reverse and remand because the jury did not unanimously
agree on defendant’s guilt.
Reversed and remanded.
