State v. Browning

For the purposes of ORS 163.205(1)(b)(D) (criminal mistreatment in the first degree), the term “take” applies to the exercise of dominion or control over property for one’s own use or the use of a third person, regardless of whether the dominion or control is intended to be temporary or permanent.

Defendant appealed his conviction on 14 counts of criminal mistreatment in the first degree, after the trial court denied Defendant's motion in limine in which the trial court held that ORS 163.205(1)(b)(D) applies to both temporary and permanent deprivations of property.  The defendant, having preserved the argument on appeal, argued that the money was a loan to be repaid, and thus did not “take the money or property for, or appropriates the money or property to, any use or purpose not in the due and lawful execution of the person’s responsibility[.]” ORS 163.205(1)(b)(D).  Interpreting the statute under the BOLI-Gaines standard, the Court looked at the clear meaning of the text as well as the legislative history.  In reviewing those, the Court found that the term “take”, for the purposes of ORS 163.205(1)(b)(D), applies to the exercise of dominion or control over property for one’s own use or the use of a third person, regardless of whether the dominion or control is intended to be temporary or permanent.