State v. Bowen, 380 P.3d 1054

Background

Defendant and an accomplice (Seaward) burglarized a Lane County home on July 31, 2012, stealing a credit card and jewelry; stolen property later sold at multiple shops.
Defendant used the stolen credit card at Kohl’s, then (per prosecution) gave the card to Seaward who used it at Macy’s; defendant sold stolen jewelry to Gold Buyers, Your Place, and Eugene Coin & Jewelry.
Indicted in consolidated cases: burglary 1st (Count 1), aggravated theft 1st (Count 2), identity theft (Counts 3 & 4 – alleging defendant “transferred” victim’s personal identification at Kohl’s and Macy’s), and theft counts for jewelry sales (Counts 5–6 and separate case).
At trial defendant moved for judgment of acquittal on identity-theft counts, arguing “transfers” does not include swiping/using a stolen credit card; trial court denied motions and jury convicted on all counts; some theft convictions merged.
On appeal the court addressed (1) statutory meaning of “transfers” in ORS 165.800(1) as applied to Counts 3–4 and (2) whether the trial court erred by not giving a jury-concurrence instruction when competing theories (principal vs aider/abettor) existed for some counts.

Issues

Issue	State's Argument	Defendant's Argument	Held
1) Meaning of “transfers” in ORS 165.800(1)	“Transfers” includes transmitting a credit-card number via a swipe during a purchase	“Transfers” requires trafficking: selling or giving possession/control of ID to a third person (not mere use/swipe)	"Transfers" means selling or giving possession/control of another’s personal identification to a third person for fraudulent/deceptive purposes (narrow trafficking definition) — reversible error on Count 3 (Kohl’s) but Count 4 (Macy’s) upheld because evidence supported transfer to Seaward
2) Sufficiency of evidence on Count 3 (Kohl’s)	A swipe transmits the card number and thus is a transfer	Swipe is a use/possession or conversion, not a transfer to a third person	Evidence insufficient under the trafficking construction; reverse Count 3 (acquittal granted)
3) Sufficiency of evidence on Count 4 (Macy’s)	Defendant transferred card to Seaward (third person) for use at Macy’s	Defendant did not transfer; merely participated/use	Sufficient evidence to infer defendant gave Seaward possession; denial of acquittal on Count 4 affirmed
4) Jury concurrence instruction (principal vs aider/abettor)	No explicit position in record; prosecution argued participation could support either theory	Trial court should have instructed that at least 10 jurors must agree on the same theory when competing theories exist	Plain error as to Counts 1 and 2 (burglary and aggravated theft): failure to give concurrence instruction was apparent and prejudicial; reversed and remanded for those counts and resentencing. No plain-error relief for Counts 4, 5, 6 and the separate theft count because only principal theory supported them

Key Cases Cited

State v. Thompson, 328 Or. 248 (statutory-interpretation standard of review) (court reviews statutory interpretation as legal question)
State v. Paragon, 195 Or. App. 265 (evidentiary sufficiency standard—view evidence in light most favorable to state)
State v. Cloutier, 351 Or. 68 (use text, context, legislative history in statutory interpretation)
State v. Medina, 357 Or. 254 (construed "utter" and "converts to the person's own use" narrowly; limit state to indictment allegations)
State v. Gaines, 275 Or. App. 736 (concurrence instruction required when state advances competing principal and aider/abettor theories)
State v. Phillips, 354 Or. 598 (elements for aider/abettor not usually coextensive with principal; concurrence requirement)
State v. Stamper, 197 Or. App. 413 (avoid rendering statutory language surplusage)
Barnhill v. Johnson, 503 U.S. 393 (same-term presumption within statute)
Ailes v. Portland Meadows, Inc., 312 Or. 376 (factors for discretionary correction of plain error)
State v. Fults, 343 Or. 515 (consideration of strategic choices in instruction objections)