State v. Hunter
308 P.3d 266
Or. Ct. App.2013Background
- Defendant was indicted by grand jury on May 13, 2010 for six counts of first‑degree aggravated theft, each covering a six‑month period.
- Count 1 alleged theft "on or between August 5, 2006 to January 31, 2007."
- Count 2 alleged theft "on or between February 2, 2007 to July 28, 2007."
- Defendant moved to demur or dismiss Count 1 and the portion of Count 2 before May 13, 2007 as time‑barred under the three‑year statute of limitations; she argued the extended discovery rule did not apply because aggravated theft lacks as a material element fraud or breach of fiduciary duty.
- The trial court denied the motion; the case proceeded to a bench trial on stipulated facts that the defendant knowingly misappropriated funds and stole over $10,000 in each charged period.
- The court convicted on all six counts; on appeal the state conceded Count 1 was time‑barred but defended Count 2 as facially sufficient because its alleged time period straddled the limitations cutoff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count 1 was time‑barred | State conceded Count 1 alleged conduct entirely outside the 3‑year limitation | Count 1 should be dismissed as facially time‑barred | Conviction on Count 1 reversed; dismissal appropriate |
| Whether Count 2 (spanning Feb 2–July 28, 2007) was subject to demurrer/dismissal because part of the period predated the limitations cutoff | Indictment is sufficient because it alleges a period (after May 13, 2007) within the limitations period | Count 2 should be limited or partially dismissed to remove time‑barred portion | Denial of demurrer and motion to dismiss affirmed; indictment facially sufficient |
| Whether aggravated theft qualifies for the extensions under ORS 131.125(8) (fraud/fiduciary breach) | State initially argued case theory involved fraud to extend limitations | Defendant argued aggravated theft lacks material element of fraud or fiduciary breach so extension inapplicable | Court (and state concession) held extension did not apply to aggravated theft |
| Whether trial procedure (stipulation) affected available relief on timing | State: indictment facially sufficient; trial choices limit defendant's relief | Defendant: procedural remedies should have narrowed or dismissed time‑barred allegations | Because defendant tried the case on stipulated facts and did not seek timing‑specific relief, court did not err in denying dismissal for Count 2 |
Key Cases Cited
- State v. Ricker, 107 Or. App. 245, 810 P.2d 1356 (Or. Ct. App. 1991) (extended limitations period does not apply to theft lacking material element of fraud or fiduciary breach)
- State v. Reed, 116 Or. App. 58, 840 P.2d 723 (Or. Ct. App. 1992) (demurrer may be sustained only when charging instrument is facially insufficient)
- State v. Scott, 48 Or. App. 623, 617 P.2d 681 (Or. Ct. App. 1980) (an indictment that alleges a time span partly within the limitations period is facially sufficient)
- State v. Wimber, 315 Or. 103, 843 P.2d 424 (Or. 1992) (trial court may amend indictment to narrow time period but is not required to do so)