483 P.3d 39
Or. Ct. App.2021Background
- Three men (Wescott, Guerrero, Hamilton) removed a safe from a feed store and loaded it into a Mr. Rooter van; the safe contained business records, a gun, bottles of alcohol, and roughly $230,000 in cash.
- Guerrero later met Zimmerman and arranged for Zimmerman to take the safe to his shop and cut it open; they agreed Zimmerman could keep the contents except Guerrero would get a portion of the cash.
- Zimmerman cut into the safe, Guerrero took some cash and left; police later recovered cash from Zimmerman, his safe, his wife, and another housemate, and found the victim’s business records in Zimmerman’s woodstove.
- Zimmerman was tried to the court and convicted of aggravated first-degree theft (Count 1) among other charges; he moved for judgment of acquittal at the close of the state’s case arguing he could not be criminally liable under a theft-by-taking theory because he did not participate until after the taking was complete.
- The trial court denied the motion, reasoning Zimmerman intended to promote or facilitate the theft by agreeing to receive and open the safe; the state argued the theft-by-taking was ongoing when Zimmerman received and opened the safe.
- On appeal the court concluded Zimmerman could not be liable under a theft-by-taking/aiding-and-abetting theory (aid-and-abet liability does not cover conduct after a crime is complete), but could be convicted under a theft-by-receiving theory; remanded Count 1 for the trial court to reconsider the verdict under receiving only and for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Zimmerman could be convicted as an aider/abetter of theft-by-taking although he joined after the safe was removed | Theft was ongoing when Zimmerman received and opened the safe; aiding and abetting applies | Aiding/abetting under ORS 161.155 covers only conduct before or during the crime, and Zimmerman had no role until after the taking | Rejected aiding/abet for taking: ORS 161.155 does not create liability for conduct after the crime; theft-by-taking was complete when safe was removed |
| Whether the trial court’s error was harmless or requires remand for clarification and possible resentencing | Court likely convicted on receiving but record ambiguous; no harmless-error proof | Error affected outcome and likely affected restitution; Zimmerman entitled to clarification/remand | Remanded Count 1 to consider only theft-by-receiving; vacated Count 1 and remanded for resentencing and restitution consideration |
Key Cases Cited
- State v. Spears, 223 Or App 675 (defines when a theft-by-taking is complete)
- State v. Rosser, 162 Or 293 (aid-and-abet refers to encouragement or assistance during commission, not after)
- State v. Barboe, 253 Or App 367 (discusses scope of ORS 161.155 aiding-and-abet liability)
- State v. Wilson, 240 Or App 475 (discusses intent element for aiding/facilitating theft)
- State v. Long, 286 Or App 334 (preservation of appellate sufficiency arguments after MJOA rulings)
- State v. Davis, 336 Or 19 (harmless-error/affirmance standard)