State v. Crowson

678 May 22, 2024 No. 339

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Respondent, v. PATRICK WAYNE CROWSON, Defendant-Appellant. Union County Circuit Court 21CR29111, 21CR52796; A179607 (Control), A179608

Robert S. Raschio, Judge. Submitted April 29, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent. Before Shorr, Presiding Judge, Mooney, Judge, and Pagán, Judge. PAGÁN, J. In Case No. 21CR29111, Count 1 reversed and remanded for entry of conviction of second-degree theft; remanded for resentencing; otherwise affirmed. In Case No. 21CR52796, remanded for resentencing; otherwise affirmed.

Nonprecedential Memo Op: 332 Or App 678 (2024) 679

PAGÁN, J. Defendant appeals the judgment of conviction in Case No. 21CR29111 for first-degree theft, computer crime, and fraudulent use of a credit card. He assigns error to the denial of his motion for judgment of acquittal on the first- degree theft count, arguing that there was insufficient evi- dence that he was liable for the theft of property valued at $1,000 or more. We reverse the first-degree theft conviction and remand for entry of a conviction for the lesser-included offense of second-degree theft. Case No. 21CR52796, was con- solidated with Case No. 21CR29111 for trial, and the cases were also consolidated on appeal. In Case No. 21CR52796, defendant appeals the judgment of conviction for failure to appear. Defendant has not assigned any error on appeal in that case, but, as we will explain, we remand for resentenc- ing in that case. We review the denial of a motion for judgment of acquittal “to determine whether, viewing the facts and all reasonable inferences that may be drawn therefrom in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.” State v. Powe, 314 Or App 726, 728-29, 497 P3d 793 (2021). As applicable here, first-degree theft requires proof that the defendant committed theft, and that the total value of the property in a single or aggregate transaction is $1,000 or more. ORS 164.055(1)(a). We briefly summarize the evidence presented at trial that is relevant to the issue on appeal. Defendant came into possession of the victim’s phone and wallet, which con- tained, among other things, a credit card. Ultimately, more than $1,400 in unauthorized charges were made on the vic- tim’s credit card, and someone used minutes from, and made changes to, her phone account. Defendant was identified as being involved, and when an officer interviewed him, defen- dant said that he had found the phone and wallet and he admitted that he had made some unauthorized purchases (totaling about $390) using a credit card from the wallet. The officer was able to view surveillance video from one of the stores in which the card was used. Video showed defen- dant making purchases in that store, and another video

680 State v. Crowson

showed someone associated with defendant making pur- chases. There was no evidence that defendant was present for the latter transaction. At the close of the state’s case, defendant moved for a judgment of acquittal, arguing that there was insufficient evidence to find that the value of the property that defendant had taken was $1,000 or more—as required for first-degree theft1—and that the state had also not adduced sufficient evidence to allow a factfinder to find that defendant was lia- ble for additional amounts through accomplice liability. The trial court denied the motion and ultimately found defendant guilty as charged. The trial court explained that it was apply- ing accomplice liability, and it recounted what it recalled about the second surveillance video evidence.2 In describing what it recalled about the officer’s description of the contents of the video, the trial court seemed to misremember or mis- understand the officer’s testimony. The court recounted that defendant had been present during the second transaction, and it relied on that and inferences that could be drawn from it to find that defendant had provided the stolen credit card to others, with the intent that they use it. On appeal, defendant assigns error to the trial court’s denial of his motion for judgment of acquittal on the first-degree theft count, making substantially the same arguments that he made below. Having reviewed the record, we agree with defendant. There is insufficient evidence that defendant alone was responsible for taking $1,000 or more, and there was insufficient evidence for a factfinder to make a non-speculative finding that defendant acted as an accom- plice so that he would be responsible for taking additional property. In Case No. 21CR29111, we therefore reverse the first-degree theft conviction (Count 1), remand for entry of a conviction of the lesser-included offense of second-degree theft, and we remand the entire case for resentencing. The

1 ORS 164.055(1)(a) provides that a person commits the crime of theft in the first degree when the “total value of the properly in a single or aggregate trans- action is $1,000 or more.” 2 The surveillance videos were neither played during the trial nor offered as evidence. Rather, the investigating officer described what he had seen in the videos.

Nonprecedential Memo Op: 332 Or App 678 (2024) 681

“entire case” here includes the consolidated case, Case No. 21CR52796, because they were consolidated below, tried together to the court, and they were sentenced together.3 Both cases, therefore, were part of the same sentencing package, and must be resentenced together. State v. Sheikh- Nur, 285 Or App 529, 540, 398 P3d 472 (2017) (Remand of all of the consolidated cases was required when a conviction in only one of them was reversed, because “[t]he principle of preserving a sentencing ‘package’ applies in this context as well—that is, when cases are filed separately but tried and sentenced together.”). In Case No. 21CR29111, Count 1 reversed and remanded for entry of conviction of second-degree theft; remanded for resentencing; otherwise affirmed. In Case No. 21CR52796, remanded for resentencing; otherwise affirmed.

3 Evidence for the two cases was presented separately, but the trial court rendered both verdicts at the conclusion of the entire trial.