State v. Feather

                                851

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
      Argued and submitted February 21, affirmed March 22, 2023


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              RAYLENE DENISE FEATHER,
                   Defendant-Appellant.
              Clackamas County Circuit Court
                    17CR13746; A174974


  Ulanda L. Watkins, Judge.
   Alex Meggitt argued the cause for appellant. Also on the
briefs was Oregon Justice Resource Center.
   Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  TOOKEY, P. J.
  Affirmed.
852                                          State v. Feather

        TOOKEY, P. J.
         Defendant appeals a judgment of conviction for seven
counts of first-degree theft (Counts 2-7 and 12), ORS 164.055;
one count of aggravated first-degree theft (Count 13), ORS
164.057; and one count of criminal mistreatment in the first-degree (Count 14), ORS 163.205. Those convictions arose
from defendant’s conduct in handling the finances of the victim, EB—who was defendant’s 96-year-old grandmother—
during defendant’s tenure as EB’s caregiver. In a single
assignment of error, defendant challenges the trial court’s
denial of her motion for judgment of acquittal (MJOA) as to
those counts. We affirm.
         We review the denial of a motion for judgment of
acquittal by “viewing the evidence in the light most favorable to the state to determine if the state presented sufficient evidence from which a rational trier of fact, making
reasonable inferences, could find the essential elements of
the crime beyond a reasonable doubt.” State v. Hedgpeth, 

, 

 (2019) (internal quotation marks
omitted).
         First-Degree Theft (Counts 2-7 and 12). The state
charged defendant with first-degree theft, alleging that
defendant had taken, appropriated, or obtained $1,000
or more from EB by executing transfers from EB’s bank
accounts to defendant on seven separate occasions between
April 29, 2014, and February 28, 2015. Defendant argues
that the court erred in denying her MJOA as to those counts,
because the evidence was legally insufficient to show that
she executed the transfers without EB’s voluntary consent
or intended to appropriate the money. We disagree.
         As relevant here, a person commits first-degree
theft when “the person acts with intent to deprive another
of property or appropriate property to the person” either
“permanent[ly] or so extensive[ly] as to deprive the property owner of the major portion of the economic value or
benefit of the property,” State v. Sorrow, 

,

 (2021) (internal quotation marks omitted),
and the “value of the property … is $1,000 or more,” ORS
164.055(1)(a).
Nonprecedential Memo Op: 

 (2023)                           853

         Here, viewing the evidence in the light most favorable to the state—including EB’s frugal spending habits,
EB’s practice of compensating defendant for caregiving with
hand-written checks, EB’s “teetering on the edge of dementia,” and the multiple electronic transfers made during the
period in question from accounts owned by EB to defendant
for thousands of dollars in excess of the agreed upon caregiving compensation—a rational factfinder could reasonably
infer that defendant appropriated the funds in question
without EB’s consent. See Hedgpeth, 

 (“When a
court considers a motion for judgment of acquittal, the question is whether the factfinder reasonably could infer that
a particular fact flows from other proven facts”; “a party
may rely on reasonable inferences arising from circumstantial evidence to establish elements of a criminal offense.”).
Accordingly, the trial court did not err in denying defendant’s MJOA as to Counts 2-7 and 12.

         Aggravated First-Degree Theft (Count 13). The state
also charged defendant with aggravated first-degree theft,
alleging that defendant had taken, appropriated, or obtained
more than $10,000 from EB “on or about” April 1, 2015. See
ORS 164.057 (“A person commits the crime of aggravated
theft in the first degree, if … [t]he person violates ORS
164.055 … [and the] value of the property … is $10,000 or
more.”). Defendant summarily asserts that the state did not
present sufficient evidence to support that claim, because
the trial transcript and the report from the state’s forensic
accountant “do not appear to mention transactions of any
amount of money on that date.”1 We disagree; viewed as a
whole, the record shows that defendant cashed savings bonds
belonging to EB and moved $30,000 of the resulting funds
into defendant’s personal bank account, and that, approximately two months before EB moved into a care facility in
June 2015, defendant used more than $10,000 of those funds
toward the purchase of a new car with defendant’s name
on the title. Viewing that evidence in the light most favorable to the state, a rational factfinder could reasonably infer
that defendant appropriated more than $10,000 from EB;

   1
     We reject without discussion the state’s contention that defendant did not
adequately preserve her challenge to the denial of her MJOA as to Count 13.
854                                          State v. Feather

therefore, the trial court did not err in denying defendant’s
MJOA as to that count.
          First-Degree Criminal Mistreatment (Count 14). In
Count 14, the state charged defendant with first-degree criminal mistreatment, which corresponded with a first-degree
theft charge alleged to have occurred between January 1,
2014, and April 30, 2014 (i.e., Count 2). As relevant here, “a
person commits first-degree criminal mistreatment if the
person, having assumed the care of an elderly person, ‘intentionally or knowingly’ ‘takes’ or ‘appropriates’ the elderly
person’s money or property for ‘any use or purpose not in
the due and lawful execution of the person’s responsibility.’ ”
State v. Browning, 

, 

, rev den,

 (2017) (quoting ORS 163.205(1)(b)(D); brackets
omitted). That offense requires the state to “prove that the
defendant obtained possession of the property without the
voluntary consent of the elderly or dependent person.” State
v. Bevil, 

, 

 (2016).
         Citing Bevil, defendant argues that the evidence
supports a conclusion that defendant was authorized to
make financial transfers under a valid power of attorney
and that EB gifted money to defendant. Having reviewed
the evidence in the record in the light most favorable to the
state, we conclude that it is legally sufficient to permit a
rational factfinder to infer that the transfers in question
were not made in the “due and lawful execution” of defendant’s responsibilities as EB’s caregiver. Further, even
assuming the record also supports an inference, as defendant contends, that the transfers were made pursuant to
defendant’s power of attorney and were intended as gifts
from EB, where the established facts support multiple reasonable inferences, then which inference to draw is for the
factfinder to decide. See State v. Rogers, 

, 

 (2019) (so noting with respect to a jury).
Therefore, the trial court did not err in denying defendant’s
MJOA as to Count 14.
        Affirmed.