State v. Zimmerman

The aid-and-abet statute, ORS 161.155, “applies only to conduct prior to or during the commission of a crime”; aid-and-abet theories of criminal liability do not apply after a crime has been committed. State v. Barboe, 253 Or App 367, 375, 290 P3d 833 (2012), rev den, 353 Or 714 (2013). Under ORS 164.015, the theft-by-taking theory requires a defendant to exercise dominion or control and physically move the property of another. State v. Spears, 223 Or App 675, 699, 196 P3d 1037 (2008).

Defendant appealed his conviction for aggravated first-degree theft.  Defendant assigned error to the trial court’s denial of his motion for judgment of acquittal on that charge due to the lack of support of a theft-by-taking theory.  On appeal, Defendant argued that no evidence was introduced that he was involved in the theft until after the taking was complete.  In response, the State argued that “there was sufficient evidence” to convict Defendant “on a theft-by-receiving theory.”  The aid-and-abet statute, ORS 161.155, “applies only to conduct prior to or during the commission of a crime”; aid-and-abet theories of criminal liability do not apply after a crime has been committed.  State v. Barboe, 253 Or App 367, 375, 290 P3d 833 (2012), rev den, 353 Or 714 (2013).  Under ORS 164.015, the theft-by-taking theory requires a defendant to exercise dominion or control and physically move the property of another.  State v. Spears, 223 Or App 675, 699, 196 P3d 1037 (2008).  The Court found that there was no evidence that Defendant “participated in, or even knew about the taking” of the stolen property “until after the taking had occurred.”  The Court also found that the error was not harmless.  The Court held that Defendant was not “criminally liable on a theft-by-taking theory,” but remanded for consideration of conviction on a theft-by-receiving theory.  Vacated and remanded.