State v. Cox

37 P.3d 193, 178 Or. App. 426, 2001 Ore. App. LEXIS 1900
CourtCourt of Appeals of Oregon
DecidedDecember 26, 2001
Docket98C43653; A104550
StatusPublished
Cited by3 cases

This text of 37 P.3d 193 (State v. Cox) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cox, 37 P.3d 193, 178 Or. App. 426, 2001 Ore. App. LEXIS 1900 (Or. Ct. App. 2001).

Opinions

DEITS, C. J.

Defendant appeals his conviction, after a jury trial in Marion County Circuit Court, of two counts of aggravated theft and one count of criminal mischief. ORS 164.057; ORS 164.965. Defendant assigns error to the trial court’s denial of his motion to dismiss count 2 of the indictment, which alleged the crime of aggravated theft in the first degree, on the ground that he had previously been prosecuted in Multno-mah County for the same offense and, accordingly, the Marion County prosecution is barred by double jeopardy under Article I, section 12, of the Oregon Constitution. We affirm.

We state the facts, which are largely undisputed for the purpose of this appeal, consistently with the jury’s verdict. Some time between 4:00 p.m. on February 15 and 5:00 a.m. on February 16, 1998, defendant stole over 20,000 pounds of aluminum from Microwave Tower Service in Marion County. On February 17, defendant met with an employee of Metro Metals, Incorporated, a scrap metal dealer, for the purpose of loading, transporting, and selling the aluminum to Metro Metals. Defendant and an accomplice followed the Metro Metals vehicle that transported the load to Portland. Upon arrival, the Metro Metals personnel became suspicious that the aluminum was stolen and contacted the police, who came and, after investigating the matter, arrested defendant and his accomplice.

On February 25, 1998, defendant was charged by indictment in Multnomah County with “Aggravated Theft in the First Degree by Receiving.” Count 1 alleged that, on or about February 17, 1998, defendant “did unlawfully and knowingly commit theft of aluminum, of the total value of $10,000 or more, the property of MICROWAVE TOWER SERVICE[.]” On April 16, 1998, defendant pled guilty in Multnomah County Circuit Court to aggravated theft in the first degree “by receiving.”

On April 6, 1998, before he entered his plea in Multnomah County, defendant was charged by indictment with aggravated theft in Marion County. On October 28, 1998, defendant was convicted by a Marion County Circuit [429]*429Court jury of aggravated theft in the first degree. Count 2 of the Marion County indictment alleged that, “on or between 2/16/98 and 2/17/98, in Marion County, Oregon,” defendant did “unlawfully, feloniously and knowingly commit theft of aluminum metal pipes and beams, of the total value of Ten Thousand Dollars or more, the property of Microwave Tower Service.”

The statutory provisions relating to theft are set out in ORS 164.015 et seq. ORS 164.015 provides, as relevant:

“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:
“(1) Takes, appropriates, obtains or withholds such property from an owner thereof; or
¿¿4$ * * * 4c
“(5) Commits theft by receiving as provided in ORS 164.095.”

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.” ORS 164.095(1). A person commits theft in the first degree if the total value of the property is $200 in a case involving theft by receiving or $750 in any other case. ORS 164.057(1) defines aggravated theft in the first degree as theft in the first degree of property (other than a motor vehicle for personal use) having a value of $10,000 or more.

As noted above, defendant pled guilty in Multnomah County to aggravated theft in the first degree by receiving. The question on appeal is whether defendant’s prosecution in Marion County for aggravated theft, pending at the time of his guilty plea in Multnomah County, was barred by double jeopardy. Defendant makes no statutory former jeopardy claim.1 He challenges the Marion County prosecution only on [430]*430the ground that it violates the state constitutional double jeopardy provision, which provides that “[n]o person shall be put in jeopardy twice for the same offen[s]e[.]” Or Const, Art I, § 12. Defendant argues that the Marion County prosecution placed him in jeopardy twice for the same offense.

Defendant’s argument depends on whether the Marion County prosecution was for the “same offense” as the Multnomah County prosecution under Article I, section 12. For purposes of Article I, section. 12, the fact that defendant may have violated more than one statute by his conduct is not determinative of this question. Rather, a second prosecution is for the “same offense” for the purpose of Article I, section 12, if: (1) the charges arise out of the same act or transaction; (2) the charges could have been tried in the same court; and (3) the prosecutor knew or reasonably should have known of the facts relevant to the second charge at the time of the original prosecution. State v. Brown, 262 Or 442, 457-58, 497 P2d 1191 (1972) (setting out standard); State v. Ellison, 301 Or 676, 725 P2d 363 (1986); State v. Farley, 301 Or 668, 672, 725 P2d 359 (1986); State v. Hunt, 119 Or App 452, 851 P2d 622 (1993). It is not disputed that the charges could have been tried in the same court or that the prosecutor knew of the facts relevant to the second charge at the time of the original prosecution. The critical question here is whether the charges arose out of the same act or transaction.

In our discussion of what constitutes the same act or transaction for purposes of Article I, section 12, we first note that the Oregon courts have incorporated certain aspects of statutory former jeopardy into the constitutional analysis. The statutory former jeopardy provision, ORS 131.515, has consistently been described as providing two separate protections. ORS 131.515(1) sets out the constitutional double jeopardy standard prohibiting more than one prosecution for the “same offense.” ORS 131.515(2) has been said to provide greater legislative protection than the constitution, barring separate prosecutions, not only for the same offense but for all known charges arising out of the same criminal episode.2 [431]*431State v. Hammang, 271 Or 749, 757, 534 P2d 501 (1975);3 State v. Garnier, 171 Or App 564, 16 P3d 1175 (2000); State v. Harris, 167 Or App 360, 362, 5 P3d 1113 (2000); State v. Lyons, 161 Or App 355, 985 P2d 204 (1999);4 State v.

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Related

State v. Toste
100 P.3d 738 (Court of Appeals of Oregon, 2004)
State v. Cox
82 P.3d 619 (Oregon Supreme Court, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
37 P.3d 193, 178 Or. App. 426, 2001 Ore. App. LEXIS 1900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cox-orctapp-2001.