No. 577 August 21, 2024 431
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
TROY ELDON BAKER,
Defendant-Appellant.
Union County Circuit Court
19CR49618; A176810
Thomas B. Powers, Judge.
Argued October 3, 2023.
Nora Coon, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
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 Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
SHORR, P. J.
Conviction on Count 1 reversed and remanded for entry
of conviction for second-degree theft by receiving; remanded
for resentencing; otherwise affirmed.
432 State v. Baker
SHORR, P. J.
Defendant appeals from his conviction for one
count of first-degree theft by receiving, ORS 164.055(1)(c)
(Count 1), based on his taking of multiple bags of recyclable cans from a commercial can collection site, La Grande
Amusement (LGA), and redeeming the cans at a grocery
store for $119.60 pursuant to Oregon’s Bottle Bill. Following
the denial of his motion for judgment of acquittal, defendant was found guilty in a stipulated facts trial before the
court.1 He now asserts that the trial court erred in denying his motion for judgment of acquittal, arguing that the
conduct he engaged in does not constitute first-degree theft
by receiving. We agree that entry of a conviction for first-degree theft by receiving was error, and reverse and remand
for entry of the lesser-included crime of second-degree theft
by receiving.
When a dispute on appeal centers on the meaning
of a statute defining an offense, the issue before us is one of
statutory construction that we review for legal error. State
v. Endicott, 296 Or App 644, 650,
439 P3d 510, rev den,
365
Or 557 (2019). After resolving the meaning of the statute, we
must determine whether a rational trier of fact could have
found that the essential elements of the crime had been
proved beyond a reasonable doubt, viewing the evidence in
the light most favorable to the state.
Id.
ORS 164.015 establishes five ways in which a person can commit “theft,” including:
“A person commits theft when, with intent to deprive
another of property or to appropriate property to the person or to a third person, the person:
“…
“(5) Commits theft by receiving as provided in ORS
164.095.”
ORS 164.095 defines ‘theft by receiving’ as follows:
1
Defendant pleaded guilty to a separate charge of second-degree theft, ORS
164.045 (Count 4), based on other conduct. He does not assign error to that conviction. Two additional counts of unlawful entry into a motor vehicle were dismissed
(Counts 2 and 3).
Cite as 334 Or App 431 (2024) 433
“(1) A person commits theft by receiving if the person
receives, retains, conceals or disposes of property of another
knowing or having good reason to know that the property
was the subject of theft.
“…
“(3) ‘Receiving’ means acquiring possession, control or
title, or lending on the security of the property.”
ORS 164.055 makes the crime of “theft by receiving” first-degree theft, a Class C felony, if the theft by receiving is
committed by “buying, selling, borrowing or lending on the
security of the property.” ORS 164.055(1)(c).
The state alleged that multiple individuals stole
an estimated 40 bags of cans from LGA. It further alleged
that defendant then returned some of those cans to a grocery store and received a total of $119.60 for the redeemable
10 cents per can deposit. The state charged defendant with
first-degree theft by receiving based on the theory that he
“disposed” of the stolen cans by “selling” them to the grocery store.2 Defendant advances two arguments in support
of his assertion that his actions did not constitute felonious
first-degree theft: (1) that he merely “redeemed” or received
a “refund” for the cans, and did not “sell” them, and thus
did not commit theft by receiving in any manner listed in
ORS 164.055(1)(c); and (2) that ORS 164.055(1)(c) was only
intended to elevate punishments of subsequent receivers of
stolen property, such as fences, and not initial thieves, and
therefore it does not apply to him. Applying State v. Fonte,
363 Or 327,
422 P3d 202 (2018), we conclude that the legislature did not intend first-degree theft by receiving to encompass the actions of an initial thief who subsequently sells
the property that he initially stole.
In Fonte, the defendant took a pair of jeans from the
sales floor of a department store and then took the jeans to
the register to “return” them, giving the impression that he
had previously purchased them. Id. at 329. The defendant
2
Defendant was not charged for the initial theft of the cans from LGA.
However, the trial court found that “there is no doubt that [defendant] took the
cans from LGA.” Defendant does not contest the finding that he stole the cans
from LGA, and indeed his arguments on appeal rely on his role as the initial
thief.
434 State v. Baker
was charged with first-degree theft by receiving for “disposing” of the stolen goods by “selling” them to the store. Id. at
330. The question before the Supreme Court was whether the
legislature intended to punish such conduct as first-degree
theft under ORS 164.055(1)(c).
Id. at 331. The court engaged
in an extensive discussion of the history of the crimes of
theft and receipt of stolen property, from eighteenthcentury England through the 1971 consolidation of the various crimes into their current form.
Id. at 332-37. In attempting to discern the intent behind the legislature’s designation of certain ways of committing theft as felonies, and thus
subject to harsher punishment than misdemeanor theft, the
court detected context clues that showed “some indication
that the legislature intended to distinguish between an initial thief who takes property and a subsequent thief who
receives that property.”
Id. at 342. The court further noted
that “when it singled out theft by receiving for harsher punishment, the legislature had a subsequent receiver, and not
an initial taker, in mind.”
Id. at 345. The court ultimately
concluded that the legislative history demonstrated “a legislative intent to distinguish between theft by taking and theft
by receiving and to punish the latter crime more harshly
when it is committed by selling.”
Id. at 347. The court went
on to note that it could also “discern a legislative intent to
make that elevated crime applicable to fences—dealers in
the market for stolen goods.”
Id.
We turn to the application of the law to the circumstances here. Because defendant was not a subsequent
receiver in this situation, and rather was an initial thief
who disposed of his ill-gotten gains for profit, we conclude
that the legislature did not intend to punish his actions as
felonious first-degree theft by receiving.
The state attempts to distinguish the present case
from Fonte by emphasizing the combined factors that led
to the conclusion in Fonte, namely that the court considered ORS 164.055(1)(c) to be inapplicable based on both the
fact that the defendant was the initial thief and because he
returned the property to its owner, rather than selling it
to a third party in the market for stolen goods. The state
is correct that the Supreme Court identified more than the
Cite as 334 Or App 431 (2024) 435
“initial thief” factor in concluding that the actions in Fonte
did not constitute first-degree theft by receiving:
“We conclude that the legislature did not intend theft
by receiving committed by selling to include a theft, such
as that committed in this case, that is both committed by
an initial thief and committed by fraudulently returning
property to its owner in accordance with the owner’s return
policy rather than by selling that property to a third party
in the market for stolen goods. … [B]ecause defendant
was the initial thief and because he returned the property
to its owner, rather than selling it to a third party in the
market for stolen goods, that crime is not punishable as a
felony under ORS 164.055(1)(c).”
Fonte, 363 Or at 348 (emphasis added).
The court’s discussion of the terms “dispose of” and
“sell” were influenced by its examination of the history of
the statutes and distinctions between theft by taking and
theft by receiving, and the legislature’s intent to punish certain classes of thieves more harshly. Id. at 337-47. We read
the court’s extensive discussion of the theft statutes and
conclusions regarding the legislative intent behind them to
establish that the Fonte defendant’s role as the initial thief
would have been independently sufficient to support its conclusion that he was not subject to ORS 164.055(1)(c). Indeed,
as noted, the court heavily relied on the legislature’s specific intention to distinguish between the initial thief and
the subsequent fencer of stolen goods and to treat the latter more harshly by treating theft by receiving under ORS
164.055(1)(c) as a felony (without regard to the value of the
stolen goods). It would be inconsistent with that legislative
intention in enacting that statute to conclude that defendant
could be both the initial thief and the subsequent fencer of
the stolen goods. Because defendant in this case was an initial thief, it is unnecessary to reach the parties’ arguments
regarding whether redeeming cans under the Bottle Bill
constitutes “selling” for purposes of ORS 164.055(1)(c).
The parties agree that, under these circumstances,
the appropriate remedy is to remand for entry of a conviction for the lesser-included crime of second-degree theft by
436 State v. Baker
receiving.3 We agree. As noted above, a person commits
theft by receiving when “with intent to deprive another of
property or to appropriate property to the person or to a
third person” the person “receives, retains, conceals or disposes of property of another knowing or having good reason
to know that the property was the subject of theft.” ORS
164.015, ORS 164.095. Such acts constitute second-degree
theft, a Class A misdemeanor, when the value of the property is $100 or more and less than $1,000. ORS 164.045. It is
undisputed that defendant knew that the cans were stolen
and that he disposed of them when he relinquished possession and control of them to the grocery store, with intent to
appropriate the value of the 10-cent refunds to himself.
Fonte noted that one intent of the consolidation
of the theft statutes in 1971 was to eliminate procedural
hurdles to theft prosecutions by making multiple means by
which the deprivation of property occurs to all constitute
theft. Fonte, 363 Or at 333, 337. Fonte made clear that,
after that consolidation, there is some overlap in the acts
that constitute theft.
Id. at 343 (“[I]t may be possible for the
same person to commit acts that constitute more than one
type of theft under ORS 164.015. … [I]n describing theft
by taking as including the act of appropriating, the legislature describes both theft by taking and theft by receiving as
including the act of disposing. The terms that the legislature
used to describe those two types of theft demonstrate that,
at least to some extent, the acts that constitute those crimes
are overlapping.”). Notably, the legislative history discussed
in Fonte that distinguished between subsequent receivers
and initial thieves was specific to ORS 164.055(1)(c) and
the legislature’s demonstrated intent to punish fences more
harshly as felons. We therefore agree with the parties that
a conviction for second-degree theft by receiving is appropriate, even in light of defendant’s status as the initial thief.
Conviction on Count 1 reversed and remanded for
entry of conviction for second-degree theft by receiving;
remanded for resentencing; otherwise affirmed.
3
The parties acknowledged at oral argument that that is the proper
disposition.
