State v. Barboe
253 Or. App. 367
Or. Ct. App.2012Background
- Defendant appeals a bench-trial conviction for fraudulent use of a credit card under ORS 165.055; the state concedes the verdict was based on an after-the-fact aid-and-abet theory not recognized in Oregon law.
- Trial court explained the verdict using an after-the-fact aiding-and-abet theory, finding liability for aiding Mercer after the crime was complete.
- Factual backdrop: a stolen credit card was used at The Pheasant Café; defendant allegedly failed to identify the cardholder and removed a $75 tip from the till, creating a cash shortfall.
- Defendant later admitted knowledge of Samantha and Mercer relationships but inconsistently claimed lack of knowledge of Mercer; trial court ultimately convicted on the improper theory.
- On appeal, defendant argued the verdict rested on an invalid legal theory; the state acknowledged the error but argued lack of preservation and non-plain error, among other points.
- The Oregon Court of Appeals reverses and remands for a new trial, holding that the verdict was based on a legally infirm theory but that sufficient evidence remains to potentially support conviction under proper theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether convicting under an after-the-fact aiding-and-abetting theory is legally valid | State concedes theory is invalid. | Brown/Andrews-style preservation argument; theory unsupported. | Invalid theory; court must correct error. |
| Whether defendant preserved the error for review | State contends preservation failed. | Defense claimed error during closing; otherwise silent after judgment. | Not preserved; but plain-error review applied. |
| Whether the error is plain and correctable under ORAP 5.45(1) | Error is not plain. | Error is obvious on the record. | Error is plain and reversible; correction warranted. |
| Appropriate disposition given unresolved material facts | New trial not necessary if evidentiary support exists. | Trial court misapplied law; issues remain as to knowledge during the crime. | Remand for a new trial on fraudulent use of a credit card. |
Key Cases Cited
- State v. Rosser, 162 Or 293 (1939) (aid and abet requires pre- or during-crime conduct, not after the fact)
- State v. Burney, 191 Or App 227 (2003) (aid-and-abet standard; evidence of intent to promote the crime)
- State v. Holcomb, 246 Or App 687 (2011) (after-the-fact assistance not cognizable under Oregon law)
- State v. Moriarty, 87 Or App 465 (1987) (actions after the commission of a crime cannot alone constitute aiding or abetting)
- State v. Wilson, 240 Or App 475 (2011) (ruling on a theory of liability in bench trial; preservation and reversal context)
- State v. Reynolds, 250 Or App 516 (2012) (strong interest in accurate criminal record; plain-error considerations)
- Andrews v. State, 174 Or App 354 (2001) (rulings on exceptions analogous to jury-instruction errors in bench trials)
- Ball v. Gladden, 250 Or 485 (1968) (preservation and unresolved factual issues guiding remand vs. reversal)