State v. Slater

Under State v. Mays, 294 Or App 229 (2018), the reliance on replacement cost to establish the value of stolen items must be supported by evidence of a nonexistent or insufficiently reliable marketplace to “provide a valuation.”

Defendant appealed a conviction for aggravated theft in the first degree and unlawful entry into a motor vehicle. The trial court denied Defendant’s motion for judgment of acquittal. Defendant has assigned error to that denial. On appeal, Defendant argued that the State failed to prove the value of the stolen item was $10,000 or greater by erroneously relying on the replacement cost of the items rather than the fair market value. In response, the State argued that they presented evidence of the fair market value of the items because the replacement cost of the items, with the context of the items’ age and condition, shows the fair market value. Under State v. Mays, 294 Or App 229 (2018), the reliance on replacement cost to establish the value of stolen items must be supported by evidence of a nonexistent or insufficiently reliable marketplace to “provide a valuation.” The Court found that the State failed to show that the market value of the items was not “reasonably ascertainable” and only presented evidence of the replacement cost. Because the State did not prove the fair market value of the items, the value element of the theft charge was not established. Conviction on Count 1 reversed and remanded for entry of a judgment of conviction for theft in the third degree; remanded for resentencing; otherwise affirmed.