State v. Patton

312 P.3d 581, 259 Or. App. 80, 2013 WL 5743811, 2013 Ore. App. LEXIS 1255
CourtCourt of Appeals of Oregon
DecidedOctober 23, 2013
Docket0902276CR; A146229
StatusPublished
Cited by2 cases

This text of 312 P.3d 581 (State v. Patton) 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. Patton, 312 P.3d 581, 259 Or. App. 80, 2013 WL 5743811, 2013 Ore. App. LEXIS 1255 (Or. Ct. App. 2013).

Opinion

SCHUMAN, P. J.

Defendant was convicted of first-degree theft, which required the state to prove that the property she was accused of stealing had a value of more than $750. ORS 164.055(l)(a) (2007).1 On appeal, she argues that the trial court erred in denying her motion for judgment of acquittal. Specifically, she argues that there was insufficient evidence to prove the charges in the indictment, which alleged the theft of “copper wire” worth more than $750. Instead, defendant argues, the trial court relied on the value of the electrical cables and cords containing copper wire, a prejudicial variance between the pleadings and the proof requiring acquittal. We conclude that the evidence was sufficient to prove the charges in the indictment, and we therefore affirm.

In ruling on the sufficiency of the evidence in a criminal case, we must “examin[e] the evidence in the light most favorable to the state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found the essential element of the crime beyond a reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995).

On May 14, 2008, a witness observed two men removing electrical cables and extension cords from a construction site in Klamath Falls. The witness later saw defendant arrive at the site in a truck. The two men then loaded the electrical cables and extension cords into the truck and the three left the scene. The witness reported these events to the police, and, after a brief investigation, defendant was arrested and charged with first-degree theft. The grand jury indictment alleged:

“The [defendant] *** did unlawfully and knowingly, commit theft of copper wire, of the total value of $750 or more, the property of another, said act of defendant being contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.”

(Emphasis added.)

[82]*82Before trial, defendant moved for a continuance due to the recent death of her father. The trial court asked whether defendant would stipulate to the testimony of the witnesses, and defendant raised the issue of the property’s value, asserting that the “value of the property was under $150” because “they melted [the electric cables and extension cords] down and that’s all they got for the copper [that was sold to a salvage shop].” The motion for a continuance was denied, and a bench trial ensued. The state’s case included testimony from the project supervisor of the construction site and from the witness who saw and reported the events. The project supervisor testified that the items taken included four large electrical cables valued at $379 each and six ten-gauge electrical cords valued at $89 each. He described the electrical cables as “large copper conductors” that each weighed between 40 and 50 pounds, were 100 feet long, and one inch in diameter. The cables, he testified, were made of six- or seven-gauge stranded copper wire coated with black rubber insulation with “twist-locks” at each end; the component parts cannot be purchased separately. The six extension cords, the supervisor testified, are also 100 feet long and contain ten-gauge copper wire. The total value of the four electrical cables and six extension cords, the supervisor testified, was $2,050.

At the close of the state’s case, defendant moved for a judgment of acquittal, arguing that the state had failed to provide any evidence that the value of the copper wire within the cables and cords exceeded $750. Further, defendant argued that if the state was attempting to use the electrical cables and extension cords as a basis for finding a property value over $750, it constituted a material variance from the indictment. Defendant explained:

“The grand jury was presented with copper wire. They were not presented with extension cords; * * * they were not presented with large conductors. Some of these items may have copper wire in them, but they’ve alleged copper wire. There’s an absolute failure of proof as to the value of the copper wire.”

The trial court denied the motion, stating that the value of the items was “$379 apiece for the four [electrical cables], [83]*83*** and six yellow-jacket, ten-gauge extension cords at $89 apiece.”

Defendant then presented her case.2 Although her primary theory was that she had never been involved in any scheme to steal the property, she also testified, with respect to the value of the copper wire, that she had recently sold an unrelated batch of copper wire for approximately $200. She testified that the copper involved in that sale filled to three-quarters full a twelve inch by twelve inch by eighteen inch box, which weighed “significantly more” than one of her “babies.” After closing arguments, the court found defendant guilty of first-degree theft.

On appeal, defendant argues that the trial court erred in denying her motion for judgment of acquittal. She argues that the state’s reliance on the value of the electrical cables and extension cords was insufficient to prove beyond a reasonable doubt that the value of the property alleged in the indictment — the copper wire — exceeded $750. Further, she contends that the trial court could not lawfully rely on the evidence presented at trial to reach its conclusion on that element of first-degree theft because it constitutes a prejudicial variance from the state’s theory of criminal liability alleged in the indictment. Specifically, the state’s reliance on the value of the electrical cables and extension cords, rather than the value of copper wire, was prejudicial to defendant because it required her to develop a different argument in defense. State v. Hansen, 253 Or App 407, 290 P3d 847 (2012); State v. Newman, 179 Or App 1, 39 P3d 874 (2002).

The state responds that the evidence was sufficient in two ways to prove that there was no variance between the pleadings and the proof. First, the state argues that the value of the electrical cables and extension cords represents the value of the “copper wire.” The state asserts that the value of a “large copper conductor” designed solely to carry [84]*84electricity is the copper itself. Thus, “it is the value of the copper that is reflected in the market value of the cord, and the trial court correctly relied on that evidence.” Second, the state argues that, in combination with the defendant’s own testimony about the sale of the unrelated box of copper scraps, the description of the cables and cords allowed the court to make a reasonable inference that the copper contained in the cables and cords had a value over $750.

In the alternative, the state argues that, even if there were a variance between the indictment and the proof, it was not prejudicial to defendant. Specifically, the state relies on the analysis in State v. Pachmayr, 344 Or 482, 494-95, 185 P3d 1103 (2008), to argue that defendant was not “deprived of a defense” when the defense is merely that the state failed to prove all of the allegations of the original indictment. See State v. Wimber, 315 Or 103,114-15, 843 P2d 424 (1992) (holding that an amendment to an indictment is prejudicial where it changes the availability of a defense). Relying on Pachmayr,

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Cite This Page — Counsel Stack

Bluebook (online)
312 P.3d 581, 259 Or. App. 80, 2013 WL 5743811, 2013 Ore. App. LEXIS 1255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-patton-orctapp-2013.