State v. Buell

Under State v. Korth, 269 Or App 238 (2015), a defendant charged with theft-by-receiving must have particularized knowledge or believe that the goods are stolen and “[p]ossession [of] or proximity to stolen goods * * * does not, on its own, allow for a finding that a person actually knows or believes that they are stolen.”

Defendant appealed convictions for, as relevant, two counts of theft in the first degree. Defendant assigned error to the trial court’s denial of his motion for judgment of acquittal on the theft counts. On appeal, Defendant argued “that there [was] insufficient evidence to support a finding that he had the mental state necessary to commit theft by receiving and * * * no evidence that he committed theft by taking.” In response, the State contended that there was evidence showing Defendant possessed guns he knew were stolen. Under State v. Korth, 269 Or App 238 (2015), a defendant charged with theft-by-receiving must have particularized knowledge or believe that the goods are stolen and “[p]ossession [of] or proximity to stolen goods * * * does not, on its own, allow for a finding that a person actually knows or believes that they are stolen.” The Court found that the evidence presented by the State failed to show “that defendant had the particularized knowledge or belief that the gun[s were] stolen.” The evidence would only allow speculation as to Defendant’s knowledge, which falls short of the standard. Convictions on Counts 6 and 7 reversed; remanded for resentencing; otherwise affirmed.