State v. Smith, 288 P.3d 974

Defendant appeals a judgment of conviction for first-degree theft by receiving.
Issue concerns the denial of his motion for judgment of acquittal on the knowledge element under ORS 164.095(1).
Defendant is in auto repair/restoration; restored a 1978 Corvette for the victim with no fixed price; total charges and exchanges amounted to roughly $8,000–$9,000.
Victim paid in cash and via personal-property trade; victim believed he was square with defendant based on partial payments, trades, and perceived deficiencies in defendant’s work; defendant believed the victim owed him over $4,000.
After hospitalization of the victim, defendant helped with sale of vehicles and personal property for the wife; defendant obtained control of several items and stored them.
On July 8, 2006, defendant took possession of multiple items, including an air compressor, generator, pressure washer, rally wheels, and other property belonging to the victim.
Approximately a year later, the victim reported the missing items; defendant admitted possession of the Corvette and other property but claimed no payments were made to the wife; defendant had not returned items and retained them to offset an alleged debt.
Trial court instructed/considered theft by receiving, and the jury found him guilty; appellate court addresses preservation and sufficiency of the knowledge element.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant knew the items were the subject of theft	State argues defendant knew or had good reason to know items were stolen, based on Rhodes’ June 12, 2007 discussion and retention after notice.	Korelis/Thomas approach: insufficient evidence of actual knowledge; disputed link to vehicle-repair dispute and defense of debt as interest.	Yes; rational jury could find knowledge; judgment of acquittal denied.
Preservation of knowledge issue	State preserved the knowledge issue; trial court sua sponte raised it and the state responded.	Defendant preserved issue through trial; preservation contested but ultimately adequate.	Preserved; merits reviewed.
Application of ORS 164.095(1) standard	Knowledge requirement is satisfied by actual knowledge or belief that property was stolen.	Only shows possession or offsetting debt; no knowledge that the property was stolen.	Court adopts actual knowledge standard (subjective), not a 'good reason to know' standard.

State v. Cunningham, 320 Or 47 (Or. 1994) (standard for sufficiency review)
State v. Thomas, 13 Or App 164 (Or. App. 1973) (requires actual knowledge/belief for ORS 164.095)
State v. Korelis, 273 Or 427 (Or. 1975) (adopts Thomas on knowledge element)
State v. Ripka, 111 Or App 469 (Or. App. 1992) (continues knowledge standard for theft by receiving)
State v. Harleson, 147 Or App 556 (Or. App. 1997) (theft by receiving continuing offense; limitations)
State v. Rocha, 233 Or App 1 (Or. App. 2009) (intent to deprive value suffices for theft)
State v. Spears, 223 Or App 675 (Or. App. 2008) (preservation when court raises issue sua sponte)
State v. Amador, 230 Or App 1 (Or. App. 2009) (preservation standards nuance)
State v. Lamb, 249 Or App 335 (Or. App. 2012) (preservation and development of record)