State v. Dillard

312 Or.App. 27

490 P.3d 176

STATE of Oregon, Plaintiff-Respondent,

v.Dionne Mechele DILLARD, Defendant-Appellant.

A168932

Court of Appeals of Oregon.

Argued and submitted July 16, 2020.

June 3, 2021

John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Daniel Norris, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julia Glick, Assistant Attorney General.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

LAGESEN, P. J.

Defendant was involved in taking a large amount of property from a Fred Meyer store without paying for it. That conduct resulted in her conviction, by a jury, for first-degree theft for taking property with an aggregate value of "$1,000 or more," ORS 164.055(1)(a). On appeal, she contends that the evidence is insufficient to support a finding that the property she took had a value of $1,000 or more and that the trial court should have granted her motion for judgment of acquittal on that basis. She also contends that the court plainly erred by not remedying allegedly improper argument by the prosecutor with a curative instruction or mistrial and by instructing the jury that it could return a nonunanimous verdict. We affirm.

Motion for judgment of acquittal . We review a trial court's "denial of a motion for a judgment of acquittal for legal error, and we consider the facts in the light most favor-able to the state and draw all reasonable inferences in the state's favor." State v. Payne , 310 Or. App. 672, 674, 487 P.3d 413 (2021). Here, defendant contends that she was entitled to judgment of acquittal because, in her view, the evidence was not sufficient to support a finding that the value of the property she took was $1,000 or more.

To prove that defendant committed first-degree theft as charged in this case, the state had to prove that the value of the property taken from Fred Meyer was "$1,000 or more." ORS 164.055(1)(a). Value, for purposes of ORS 164.055(1)(a), means "the market value of the property at the time and place of the crime, or if such cannot reasonably be ascertained, the cost of replacement of the property within a reasonable time after the crime." ORS 164.115(1). Market value, in turn, "is the price at which the property could have been sold at the time and place it was stolen." State v. Slater , 310 Or. App. 746, 754, 487 P.3d 59 (2021). In the case of merchandise stolen from a retailer, market value may be proved by evidence of the price at which the retailer offered to sell the merchandise.

State v. Pulver , 194 Or. App. 423, 428, 95 P.3d 250, rev. den. , 337 Or. 669, 104 P.3d 601 (2004). That is because such evidence tends to show the value of the merchandise "in trade." Id. at 427, 95 P.3d 250.

To prove market value in this case, the state called the store's asset protection specialist, Meccia. Meccia testified that, after the store's property was recovered from defendant, he "returned to the asset protection office with the merchandise we were able to identify to come up with a valuation." He did so, in general,¹ by scanning the universal price codes on the items that defendant had taken to identify the current prices for those items:

"Basically * * * in the asset protection office we have a computer terminal that has a scan gun, a laser scan gun, that we can scan a UPC, universal price code, and it will pull up the base price for that item for that day, for that week, whenever they update the prices."

The prices identified through this process were the "standard code price[s]." If the price for an item was discounted, the discounted price would "[n]ot necessarily" pop up. For example, if a coupon was available, the coupon price would not pop up "because we're not using a coupon." Through that process, Meccia determined that the prices of the various items taken added up to $1,002.96.

Pointing to Meccia's testimony that his process would "[n]ot necessarily" pull up discounted prices for the items, defendant contends that the state's evidence is insufficient to support a finding of the market value of the items taken. In defendant's view, the state had to prove what each item was actually priced on the date of defendant's crime, something that required proof that each item was priced at the standard price on the date of the theft and not discounted.

That is not the standard. What the state must prove "is the price at which the property could have been sold at the time and place it was stolen." Slater , 310 Or. App. at 754 (emphasis added); State v. Callaghan , 33 Or. App. 49, 58, 576 P.2d 14, rev. den. , 284 Or. 1 (1978) (to prove market value of stolen merchandise for purpose of theft statutes, state must prove "the price at which they would probably have been sold in the regular course of business at the time when and place where they were stolen" (internal quotation marks omitted)). Here the evidence presented by the state of the standard prices for the stolen merchandise at the time of the theft is legally sufficient to make that showing. An "item's price provides prima facie proof of its value * * * because the asking price is itself a basis from which to determine its value in trade." Pulver , 194 Or. App. at 427, 95 P.3d 250. That certain items may...