State v. Dillard, 490 P.3d 176

Dillard took a large quantity of merchandise from a Fred Meyer store and was charged with first-degree theft for taking property with an aggregate value of $1,000 or more under ORS 164.055(1)(a).
Fred Meyer’s asset-protection specialist (Meccia) scanned UPCs after recovery to obtain each item’s standard/base price from the store database, yielding a total of $1,002.96.
Meccia testified the scanning process returned standard prices and would not necessarily reflect temporary discounts, coupons, or sale prices.
Dillard moved for judgment of acquittal, arguing the state failed to prove market value at the time/place of the theft because some items may have been on sale.
On appeal Dillard also argued that a prosecutor’s rebuttal comment (“no testimony that any of [the stolen] items were on sale…”) shifted the burden and that the trial court erred by instructing the jury it could convict by a 10–2 verdict.
The trial court denied the motion for judgment of acquittal and did not intervene during closing; the Court of Appeals affirmed.

Issue	State's Argument	Dillard's Argument	Held
Sufficiency of evidence to prove market value ≥ $1,000	Standard/base prices from retailer show market value; totaled $1,002.96	State failed to show actual sale prices on date—discounts could reduce aggregate value below $1,000	Evidence of retailer’s standard prices was sufficient to permit a jury to find market value ≥ $1,000; denial of JOA proper
Prosecutor’s rebuttal comment (no testimony items were on sale) — plain error claim	Comment was proper rebuttal to defense argument that discounts mattered	Comment misstated law and shifted burden to Dillard, requiring curative action	Not obvious error; context did not show plain error, so claim fails
Jury instruction allowing 10–2 verdict — plain error claim	No argument preserved; court erred but correction discretionary	Instruction undermined unanimity requirement, requiring reversal	Instruction was erroneous, but appellate court declined to correct the error under its discretion (following precedent)

State v. Slater, 310 Or. App. 746 (market value = price at which property could have been sold at time and place of theft)
State v. Pulver, 194 Or. App. 423 (retailer’s offered price is evidence of merchandise market value)
State v. Callaghan, 33 Or. App. 49 (proof of price at which goods would probably have been sold establishes market value)
State v. Payne, 310 Or. App. 672 (standard of review for denial of judgment of acquittal)
State v. Vanornum, 354 Or. 614 (plain-error standard: legal, obvious, and apparent on the record)
State v. Dilallo, 367 Or. 340 (appellate discretion not to remedy erroneous nonunanimous-verdict instruction)