State v. Ellingsen

Under ORS 164.055(1), “[t]he legislature did not intend theft by receiving committed by selling to include a theft, * * * 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.” State v. Fonte, 363 Or 327 (2018).

Defendant appealed his criminal convictions for first-degree theft and robbery. Defendant assigned error to the trial court denying his motion for acquittal. On appeal, Defendant argued that there was insufficient evidence under ORS 164.055(1) because he could not have committed theft by receiving because the “act of returning property for a refund does not constitute ‘selling’ [of] that property.” In response, the State argued that the trial court correctly denied his motion. Under ORS 164.055(1), “[t]he legislature did not intend theft by receiving committed by selling to include a theft, * * * 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.” State v. Fonte, 363 Or 327 (2018). The Court held that the trial court erred in denying the motion because Defendant was the initial thief who fraudulently returned the items for a cash refund. First degree theft reversed; remanded for resentencing, otherwise affirmed.