We begin by setting out the relevant text and providing some background about its origins. We then analyze the text, together with its context and legislative history, to determine whether the legislature intended to punish defendant's conduct as first-degree theft under ORS 164.055 (1)(c). See State v. Gaines ,
I. TEXT
Oregon law defines the crime of theft broadly. ORS 164.015 provides:
"A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person:
"(1) Takes, appropriates, obtains or withholds such property from an owner thereof;
"(2) Commits theft of property lost, mislaid or delivered by mistake as provided in ORS 164.065 ;
"(3) Commits extortion as provided in ORS 164.075 by compelling or inducing another person to deliver property;
"(4) Commits theft by deception as provided in ORS 164.085 ; or
"(5) Commits theft by receiving as provided in ORS 164.095."
Theft by receiving-the relevant act of theft here-is defined in ORS 164.095, which provides:
"(1) A person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.
"* * * * *
"(3) 'Receiving' means acquiring possession, control or title, or lending on the security of the property."
ORS 164.055(1)(c) provides that a person commits the crime of theft in the first degree if the "theft is theft by receiving committed by buying, selling, borrowing or lending on the security of the property."
II. BACKGROUND
Before 1971, Oregon had several statutes that covered the various forms of unlawful property misappropriation and that incorporated the distinctions drawn between them by eighteenth-century English courts. See State v. Harris ,
By statute, the state need not specify the exact manner in which the deprivation occurred. ORS 164.025 provides:
"(1) Except for the crime of extortion, conduct denominated theft under ORS 164.015 constitutes a single offense.
"(2) *** In all [cases other than theft by extortion,] an accusation of theft is sufficient if it alleges that the defendant committed theft of property of the nature or value required for the commission of the crime charged without designating the particular way or manner in which the theft was committed.
"(3) Proof that the defendant engaged in conduct constituting theft as defined in ORS 164.015 is sufficient to support any indictment, information or complaint for theft other than one charging extortion."
That statute highlights the effect of consolidation:
"[It] removes the necessity of specifying the exact manner in which the deprivation occurred. It allows a prosecutor with imperfect information to proceed against a defendant, knowing that a difference between the theft allegation in the indictment and the ultimate proof at trial will not be fatal to the state's case, because the substance of the offense-the intentional and unlawful deprivation of property-is the same."
Cox ,
However, when the state charges a defendant with first-degree theft under ORS 164.055(1)(c), the manner in which the deprivation occurred is crucial. The deprivation must be "theft by receiving," and, as charged here, the theft by receiving must be committed by "selling." ORS 164.055 (1)(c). As a result, it is essential to our construction of that provision that we determine the actions that the legislature intended to include in its definition of that crime, and an overview of its origins is helpful.
Oregon, like most states, incorporated England's law governing the separate acts of larceny and receiving stolen property. The Deady Code included both of those independent crimes. General Laws of Oregon, Crim. Code, ch. XLIV, § 547, p. 536 (
In 1971, following the approach of the Model Penal Code and the recommendation of the Oregon Criminal Law Revision Commission, the legislature consolidated theft into a single offense and included the act of receiving stolen property as one of the means to commit that offense. See Oregon Criminal Code, Final Draft and Report, § 129 comment A, 137 (1971) (noting incorporation of receiving stolen property into consolidated theft statute); Model Penal Code § 223.6 comment 1 at 231 (same). However, the legislature retitled the crime "theft by receiving" and described the acts that constitute that crime more broadly to include not only "receives" and "conceals," but also "retains" and "disposes of" stolen property. ORS 164.095(1) (defining theft by receiving).
With that background, we return to the relevant text of the crime of first-degree "theft by receiving" committed by "selling" and consider whether that crime extends to acts such as those that defendant committed in this case. Defendant does not contest his conviction by arguing that the evidence was insufficient to establish that he had the requisite criminal intent; nor does he argue that he did not commit misdemeanor theft of the jeans or misdemeanor theft of the money. Rather, defendant contests only the sufficiency of the evidence to establish that he committed first-degree theft under ORS 164.055(1)(c), which, as noted, is a felony.
III. ANALYSIS
In this court, defendant focuses on the meaning of "disposes of" and "selling." As to the former, defendant argues that the legislature used "disposes of" to refer to a means of depriving an owner of property. According to defendant, returning stolen property to its owner does not constitute such a deprivation. Or, put another way, one cannot "dispose[ ] of" property by relinquishing possession or
The state responds that both terms, neither of which is defined by statute, should be given their plain, ordinary meaning. See PGE v. Bureau of Labor and Industries ,
Dictionary definitions provide some information about what the legislature intended, but they are not always determinative. See State v. Cloutier ,
The most immediate contextual clue to legislative intent is found in the legislature's description of the various acts that constitute theft by receiving-"receives," "retains," "conceals," and "disposes of." Defendant contends that the first three of those listed acts are necessarily committed to the exclusion of the owner. Defendant argues that the term "disposes of" should be given a similar meaning and should be understood to mean the relinquishment of control of stolen property to the exclusion of an owner. See State v. Walker ,
Defendant also detects a similar clue in a defense to theft by receiving. ORS 164.035(3) makes it a defense to theft by receiving "that the defendant received, retained, concealed or disposed of the property with the intent of restoring it to the owner ." (Emphases added.) Defendant argues that that defense is best understood as protecting persons who transfer stolen property to a third party, non-owner, with the intent that the third party return it to the owner. Defendant explains that the act of transferring stolen property to a third party undoubtedly is a criminal act, but the act of returning stolen property to an owner is not. Defendant apparently argues that understanding the defense to be available only to those who transfer property to third parties is consistent with his understanding that a defendant who transfers property to an owner does not
Turning to contextual clues about the meaning of the word "selling," defendant again points to the other words that the legislature used to describe the acts that constitute first-degree theft under ORS 164.055(1)(c) -"buying," "borrowing," and "lending." Defendant contends that those words have market connotations that suggest
The state has a two-fold response. First, the state contends that all of defendant's arguments depend on establishing a legislative intent to limit the plain meaning of the words that the legislature chose to use. Defendant's efforts, the state asserts, fall short. Second, the state argues that many of defendant's arguments would allow an incongruity that the legislature certainly did not intend. That is, defendant's interpretation of ORS 164.055(1)(c) would seem to make liability for that Class C felony turn on the identity of
There are aspects of both parties' arguments that are convincing; yet, there is a salient clue that tips the scale towards defendant's position that the legislature did not intend to capture his conduct under ORS 164.055(1)(c). We find it particularly telling that, although the legislature has consolidated the various acts of theft into one crime, it continues to draw distinctions between them. The legislature makes the intent necessary to commit theft-the "intent to deprive another of property or to appropriate property to the person or to a third person"-applicable to all types of theft. ORS 164.015. However, as previously explained, the legislature separately describes in five subsections the types of acts that a thief may commit. In the first subsection of ORS 164.015, the legislature provides that a person commits theft when, with the necessary intent, the person "[t]akes, appropriates, obtains or withholds" property "from an owner thereof." ORS 164.015(1). Although the legislature did not label that type of theft, we will, for ease of reference, refer to subsection (1) as describing "theft by taking." In the subsections that follow theft by taking, the statute provides that a person commits theft when, with the necessary intent, the person commits theft of property lost, mislaid or delivered by mistake; extortion; theft by deception; or theft by receiving. ORS 164.015(2) - (5). The legislature further describes each of those acts in separate statutes. For instance, the legislature defines theft by receiving in ORS 164.095.
To plead or prove a violation of ORS 164.015, it does not matter which type of theft or which particular act of theft a person committed. ORS 164.025(2) - (3) ; Cox ,
When we also consider the legislature's description of the acts that constitute the crime of theft, we discover additional clues that the legislature intended to differentiate between the types of theft and did not necessarily
Another clue is that, when describing theft by receiving in ORS 164.095(1), the legislature requires that the person commit the requisite acts "knowing or having good reason to know that the property was the subject of theft ." (Emphasis added.) The legislature did not include a similar requirement in its description of theft by taking, apparently presuming that an initial thief who steals property will know that he or she is committing theft, but understanding that a person who subsequently receives that property might not.
Those descriptions suggest that the legislature may continue to see distinctions between theft by taking and theft
The state agrees and emphasizes that the legislature's overarching purpose in enacting ORS 164.015 was "to jettison technical distinctions that had plagued the law of
We agree that, in some respects, the legislature intended to consolidate the acts of theft and treat them similarly. But the stubborn fact is that the legislature did not make all types of theft described in the consolidated theft statute punishable as a felony under ORS 164.055(1)(c). ORS 164.055(1)(c) requires that the state prove a particular type of theft-theft by receiving. The legislature must have seen some distinction between that and other types of theft and must have decided that theft by receiving was more deserving of a more stringent sanction. It is at least plausible that the distinction that the legislature discerned was a distinction between the classes of thieves that had long been recognized-initial thieves who take property and subsequent thieves who receive that stolen property and resell it. In describing theft by receiving, the legislature describes the acts of persons who know or have reason to know that property "was" stolen. ORS 164.095(1). That context is an
To further explore the legislature's intent, it is helpful to consult the legislative history. See Gaines ,
What we also learn from the legislative history is that, in discussing the inclusion of theft by receiving as a type of theft in ORS 164.015, members of the Oregon Criminal Law Revision Commission discussed initial thieves and receivers as different species of thieves, even though they thought of them as equally culpable. Members noted that receivers "[are] just as bad" and culpable as a those who steal the property in the first place. Tape Recording, Criminal Law Revision Commission, Subcommittee 1, Apr. 6, 1968, Tape 11, Side 2 (statement of project director Donald Paillette); see State v. Garcia ,
The commission's proposal for grading thefts largely followed the Model Penal Code's approach, which, in the main, turned on the type or value of the property involved. See Tape Recording, Senate Committee on Criminal Law and Procedure, SB 40, Mar. 2, 1971, Tape 4, Side 1 (statements of Paillette discussing grading based on value or type of property); Tape Recording, Criminal Law Revision Commission, Subcommittee 1, Apr. 4, 1970, Tape 56, Side 2 (statements of Paillette discussing the Model Penal Code's approach); Model Penal Code § 223.1(2) (explaining theft grades). However, the Model Penal Code made theft by receiving a first-degree offense if "the receiver is in the business of buying or selling stolen property." See Model Penal Code § 223.1(2)(a) (making that act a felony). The commission rejected that aspect of the Model Penal Code's approach. Tape Recording, Criminal Law Revision Commission, Subcommittee 1, Apr. 6, 1968, Tape 11, Side 2 (statements of Paillette). The commission believed that people engaged in such business-fences-would be punished for theft in the first-degree without adopting the Model Penal Code provision because fences generally deal in sufficient quantities of stolen property that they would possess stolen property with a value that would qualify for first-degree grading. Tape Recording, Criminal Law Revision Commission, Subcommittee 1, Apr. 6, 1968, Tape 11, Side 2 (statements of Paillette). Thus, the commission adopted grading criteria that turned on objective, non-act specific criteria-the type or value of the stolen property, as well as the circumstances under which the property was misappropriated.
From that legislative history, we can discern a legislative intent to distinguish between theft by taking and theft by receiving and to punish the latter crime more harshly when it is committed by selling. We also can discern a legislative intent to make that elevated crime applicable to fences-dealers in the market for stolen goods. That understanding of legislative intent supports defendant's textual
We conclude that the legislature did not intend theft by receiving committed by selling to include a theft, such as that committed in this case, that is both committed by an initial thief and committed by fraudulently returning property to its owner in accordance with the owner's return policy rather than by selling that property to a third party in the market for stolen goods. As defendant concedes, his act of taking jeans from a store's sales floor and fraudulently returning them for cash constitutes theft. Based on the value of the jeans, that theft is punishable as a misdemeanor under ORS 164.045.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Kistler, J., concurred in the judgment and filed an opinion, in which Balmer and Duncan, JJ., joined.
KISTLER, J., concurring in the judgment.
This case presents a recurring issue. Defendant took merchandise (a pair of jeans) from the store shelf to the clerk, told the clerk that he had purchased the jeans earlier, and then "returned" the jeans in exchange for their purchase price. The state charged defendant with committing first-degree theft by receiving by selling stolen goods in violation of ORS 164.055(1)(c). I agree with the majority that defendant committed theft. I also agree with the majority that defendant did not commit first-degree theft by receiving. However, I reach that conclusion in a different
Three statutory variations of theft are relevant. Two are found in ORS 164.015, which defines "theft" as including both the modern equivalent of the common-law crime of larceny, ORS 164.015(1), and the modern equivalent of the common-law crime of theft by receiving, ORS 164.015(5). The former requires proof that a person, with the intent to deprive another of property or to appropriate the property, "[t]akes, appropriates, obtains or withholds such property from an owner thereof." ORS 164.015(1). The latter requires proof that, with the requisite intent, a person "receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft." ORS 164.095(1) ; see ORS 164.015(5) (stating that theft includes theft by receiving as defined in ORS 164.095 ). Finally, ORS 164.055(1)(c), the statutory provision that defendant allegedly violated in this case, elevates the crime of theft by receiving to first-degree theft when a person commits the crime of theft by receiving "by buying, selling, borrowing or lending on the security of the property."
On this record, no reasonable juror could have found defendant guilty of the predicate crime of theft by receiving. See ORS 164.095(1) (defining that crime). The reason for that is straightforward. Defendant did
This opinion starts with the proposition that the act that constitutes theft must precede the act that constitutes theft by receiving. That proposition follows from the text of
The remaining proposition on which this opinion rests-that no theft occurred until defendant returned the jeans for cash-finds its roots in the common-law crime of larceny, which is the source of the current definition of theft in ORS 164.015(1).
To avoid that problem, the common law developed at least two doctrines that are relevant here. Initially, judges reasoned that the bailee in the Carrier's Case was in possession of the package but not its contents so that, when the bailee broke open the package midway through the bailment and removed the contents, he committed larceny. See id. at 32. Later, in interpreting the crime of larceny, the courts explained that bailees and others who were entrusted with property merely had "custody" of the property while the owner retained "constructive possession" of it. LaFave, 3 Substantive Criminal Law § 19.1(a) at 70-71. When the person with custody of the property misappropriated it, that
The distinction between custody and constructive possession also was applied in situations, such as this one, where "[a] property owner delivers the property to another person as part of a transaction to be completed in the owner's presence, as where [the property owner] hands a storekeeper a large bill to pay for a small purchase, or hands a jeweler his watch to be appraised while he waits." Id. at 71. In that situation, the "owner [was] said to have 'constructive possession,' while the other person has mere custody, so that, if the latter runs off with it, he [or she] takes [the property] from the owner's possession and so is eligible for a conviction of larceny." Id.
Initially, Oregon followed the common law. See State v. Keelen ,
In this case, the jury could find that defendant possessed the jeans-i.e. , exercised dominion and control over them-when he took them off the shelf and brought them to the cash register. However, in doing so, defendant did not take, appropriate, obtain, or withhold the jeans from the owner of the store, who had a superior right of possession. Rather, he did what every store owner hopes its customers will do: Defendant took the jeans to the cash register. It was only when defendant returned the jeans for cash that he acted inconsistently with the owner's superior possessory right. Only at that point did defendant commit a theft of the jeans by appropriating their value inconsistently with the owner's superior interest. See ORS 164.005(1) (defining "appropriate" as "[e]xercis[ing] control over property of another *** under such circumstances as to acquire the major portion of the economic value *** of such property").
The act that constituted a theft of the jeans-returning them for cash-is the same act on which the state bases its claim that defendant received stolen property by disposing of it. As explained above, however, the text of ORS 164.095(1) makes clear that the theft of property must precede and be separate from the act that constitutes theft by receiving. Both crimes cannot be based on the same act. For that reason, defendant did not commit the predicate crime of theft by receiving. It follows that defendant could not have committed the greater crime of theft by receiving by selling.
It is necessary to address one final issue. In this case, defendant conceded in the Court of Appeals that the theft occurred when he removed the jeans from the shelf with the intent to appropriate them. More specifically, relying on the Court of Appeals decision in State v. Rocha ,
Balmer and Duncan, JJ., join in this opinion concurring in the judgment.
Before the 1971 revision to the Criminal Code, some defendants attempted to challenge their convictions by claiming that the evidence showed that they committed a form of theft different from the one charged in the charging instrument. See State v. Lewis ,
That is the problem that the legislature intended to fix with the consolidated theft statute. See Paillette,
The criminalization of that conduct was created to prevent breaches of the peace, not necessarily to protect private property. LaFave, 3 Substantive Criminal Law § 19.1(a) at 69. Over time-and specifically as manufacturing and business grew-judges saw a need to enlarge the scope of larceny to protect property from various forms of misappropriation and, to do so, expanded the scope of an owner's possession.
"At this point in the chronology of the law of theft, about the end of the 18th century, a combination of circumstances caused the initiative in the further development of the criminal law to pass from the courts to the legislature. Among these circumstances were the general advance in prestige and power of parliament and the conversion of the idea of 'natural law' from an instrument for judicial defiance of monarchy to a restraining philosophy envisioning judges as interpreters of immemorial custom rather than framers of policy. Perhaps the most direct influence of all was a revulsion against capital punishment, which was the penalty for all theft offenses except petty larceny during much of the 18th century. The severity of this penalty not only made the judges reluctant to enlarge felonious larceny but also may account for the host of artificial limitations that they engrafted on the offense ***."
Model Penal Code § 223.1 comment 2(a) at 128-29 (Official Draft and Revised Comments 1980). Accordingly, Parliament stepped in and created new crimes that proscribed the other forms of property deprivation that fell outside the scope of larceny. LaFave, 3 Substantive Criminal Law § 19.1(b) at 73-74. According to LaFave, "matters would have been simpler for us in the United States *** if Parliament had stretched larceny rather than creating new crimes" because the dividing lines between them often resulted in difficulties in prosecuting thieves.
"If any person shall steal any goods or chattels, or any government note, or bank note, promissory note, or bill of exchange, bond or other thing in action, or any book of accounts, order or certificate concerning money or goods due or to become due, or to be delivered, or any deed or writing containing a conveyance of land or any interest therein, or any bill of sale or writing containing a conveyance of goods or chattels or any interest therein, or any other valuable contract in force, or any receipt, release or defeasance, or any writ, process or public record, the property of another, such person shall be deemed guilty of larceny ***." General Laws of Oregon, Crim. Code, ch. XLIV, § 547, p. 536 (
"If any person shall buy, receive or conceal, or attempt to conceal, any stolen money or property, knowing or having good reason to believe the same to be stolen, such person, upon conviction thereof, shall be punished ***." General Laws of Oregon, Crim. Code, ch. XLIV, § 556, p. 538 (
See, e.g., People v. Ceja ,
Under the statute that described the crime of receiving stolen property, a person could be convicted of that crime by "concealing" property that he or she stole. Carlton ,
For example, extortion is a Class B felony regardless of the value or nature of the property stolen. ORS 164.075(2). Extortion must be specifically alleged in the charging instrument. ORS 164.025(2).
The provisions from the Deady Code were later codified. The text of the provision covering the receipt of stolen property seems to have remained the same. Compare General Laws of Oregon, Crim. Code, ch. XLIV, § 556, p. 538 (
The state notes that in Cox ,
The legislature asked the director to draft and submit an amendment that addressed the committee's concerns. Tape Recording, Senate Committee on Criminal Law and Procedure, SB 40, Mar. 5, 1971, Tape 8, Side 1 (statement of Sen. Kenneth Jernstedt). However, it does not appear that the amendment was ever drafted or that, if it was, the legislature ever discussed the issue again during the course of its meetings.
Defendant acknowledges that the allegations in the indictment, the trial court's findings, and defendant's admission that he committed theft by taking "plausibly allow for a remand" for entry of two convictions for misdemeanor theft by taking and resentencing. The state agrees with defendant on that point.
As discussed above, a person commits theft in violation of ORS 164.015(1), if the person, with the intent to deprive another of property or to appropriate the property, "[t]akes, appropriates, obtains or withholds such property from an owner thereof."
That was so even though the person to whom the property was given would ordinarily have sufficient dominion and control over it to possess it. LaFave, 3 Substantive Criminal Law § 19.1(a)(1) at 70. Custody and constructive possession were labels adopted to avoid the definitional problem created by the common law that a person lawfully in possession of property could not be guilty of larceny.
It is difficult to fault defendant for relying on Rocha . The fact pattern in that case is virtually identical to the fact pattern here, and the Court of Appeals held in Rocha that the defendant committed theft when he possessed the merchandise by taking it off the shelf and moved it a short distance.