Embezzlement, Criminal Mistreatment and Aggregated Thefts
by: Ryan • March 12, 2011 • no comments
To non-lawyers, this post might seem all about technicalities. But the premise is pretty simple: the severity of punishment should be in relationship to the crime, not the clever charging of the prosecutor.
An earlier post by Alex Bassos on prosecutorial discretion and the aggregation of numerous small thefts into a handful of big ones can be found here. The inspiration for that post is a case currently under advisement with the Oregon Court of Appeals. The odds favor an opinion before the end of 2011.
Here's a separate and distinct basis for dismissing these types of aggregated theft cases. Those of you who have such cases (arising most often out of embezzlement cases or criminal mistreatment cases involving a relative's $$$) know that the state can add up all the thefts from the same victim that occurred in a six month period to create a theft charge of greater seriousness (e.g., add up misdemeanor thefts to create a felony or felony thefts to create an Aggravated Theft). Further, prosecutors will creatively add up the thefts - in less than 6 month increments - in order to maximize the potential sentence the defendant could receive under the repeat property offender law. The way the statutes are interpreted, there is a perverse incentive, for example, for prosecutors to avoid a charge of Aggravated Theft (more than $10k) if they can get 5 counts of Theft in the First Degree (more than $1k).
Apart from the equal privileges argument mentioned above and detailed in the earlier post, there is an argument that says aggregation in anything less than six month increments is unlawful. Moreover, it's an argument that has prevailed.
The authority to aggregate the value of multiple individual theft transactions into single counts springs from ORS 164.115(5). ORS 164.115(5) reads:
"The value of single theft transactions may be added together if the thefts were committed: (a) Against multiple victims by similar means within a 30-day period; or (b) Against the same victim, or two or more persons who are joint owners, within a 180-day period."
I submit that the plain language of the statute authorizes the state to aggregate - if it chooses to - all of the thefts from a single victim that occurred within a 180 day period. But the statute does not authorize a mix-and-match of aggregation, where only some of the counts within the 180-day period will be aggregated, and some not, in order to maximize the number and seriousness of the charges.
The legality of the District Attorney's decision to partially aggregate the charges in this case turns on the meaning of the word "may" in ORS 164.115. In interpreting words in a statute, courts are to define words as they are ordinarily or commonly understood. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610 (1993).
The word "may" is a permissive term whose ordinary meaning is to "have liberty to." Nibler v. Oregon Department of Transportation, 338 Or. 19, 27 (2005). Thus, ORS 164.115(5) grants the district attorney authority to aggregate thefts into 180-day periods where the thefts are committed against a single victim. Or the state may not. Those are the only two choices. The statute does not permit partial aggregation. On the issue of whether alternatives necessarily foreclose other options not listed among those two alternatives, see Hubner v. Hubner, 67 Or. App. 557 (1913)(statute allowing commencement of marriage dissolution in a county where one of the parties resides by implication does not allow a suit to be commenced in a county in which neither parties reside).
The statute in this case should be contrasted to other statutes and rules, such as the Oregon Administrative Rule on upward departure limitations. OAR 213-008-0005.
Dispositional Departure Limitations (1) When a sentencing judge imposes a prison term as a dispositional departure, the term of incarceration shall be: (a) Up to six months for offenses classified in Crime Categories 1 and 2, or grid blocks 3-G, 3-H and 3-I. [Bold added.] The "up to six months" is key, explicitly allowing departures that are less than the six month maximum. Note the similar language in OAR 213-010-0002. Revocation Sanctions (1) For those offenders whose presumptive sentence was probation, the sentence upon revocation shall be to the supervisory authority for a term up to a maximum of six months. [Bold added.]
When the statute or rule intends to permit segments smaller than that named in the statute, it says so. That is not the case with ORS 164.115(5). As noted in State v. Shaw, 338 Or 586, 603, 113 P3d 898 (2005), "We . . . generally presume that 'use of a term in one section and not in another section of the same statute indicates a purposeful omission[.]' PGE, 317 Or at 611, 859 P2d 1143."
For persuasive authority, see the [Aggregated Theft opinion] from the Honorable Terry Ann Leggert granting a motion to dismiss on this identical issue. The opinion is old, but that reflects the failure of defense attorneys to raise it in the decade plus since Gail Meyer argued and won it.
Benefit/Loss to the State
The most likely motivation behind the creative aggregation in this indictment is this: supposedly, by aggravating in such a way to create - for example - three separate Aggravated Thefts, the state has created three separate criminal episodes. By creating three separate criminal episodes, the defendant would be subject to the repeat property offender law, ORS 137.717. (Since this defendant has no criminal history, he would not be subject to the repeat property statute unless there is a finding a separate criminal episodes. ORS 137.717(5)[1].)
However, there are two problems with this effort, one in general and one that is common to these types of cases but not universal. The first is that a finding of separate criminal episodes is a fact question. See State v. Mallory, 213 Or App 392 (2007)(making a finding of separate criminal episodes a question for the fact-finder in certain situations, when not obvious from the court records.) And facts are generally not something that can be created or uncreated by the manner in which the state charges the crimes.
But there is often a greater problem. In a typical embezzlement or criminal mistreatment ($$$) case, the alleged thefts in March are substantially cross-related to the thefts in May, since the state would be proving in both the nature of the relationship between the defendant and victim (employer, caregiver), the financial responsibilities that allowed the alleged theft to occur, the gambling losses that provided the motive for all of the thefts, and so forth. Many of the same facts in count 1 are going to be offered into evidence to prove count 2 and count 3.
Because substantial amounts of the evidence from count 1 is essential to the state proving counts 2 and 3, all three counts arise from a single criminal episode. For a good discussion of the law surrounding "same criminal episode," see the relatively recent case of State v Potter, 236 Or App 74, 234 P3d 1073 (2010) [2]. First, the Potter court noted that "criminal episode" under ORS 131.505(4) has long been held to mean the same thing as "same act or transaction." The Potter court then quoted State v. Boyd for what constitutes the same criminal episode:
As the court explained in Boyd, as an initial guideline,
"if a complete account of one charge necessarily includes details of the other charge, the charges must be joined to avoid a later double jeopardy defense to further prosecution. We construe this test of interrelated events as necessitating joinder only where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge. Stated differently, the charge[s] must be cross-related."
Boyd, 271 Or at 566 (footnote omitted; emphasis omitted and added).
For the reasons given above, the charges in an embezzlement case are frequently, if not inevitably, "cross-related." The state could not, in the language of Boyd, give a complete account of theft in March, without including the details of the alleged theft from May. If cross-related, they arise from the same criminal episode, as Boyd and Potter hold unambiguously. And if from the same criminal episode, the first count cannot serve as a predicate for a repeat property sentence. ORS 137.717(5).
If someone is not conversant in the case law on "same criminal episode," then it may seem odd that one criminal episode can stretch over weeks or months. But in fact this is not unusual. See State v. Cantrell, 223 Or App 9, 195 P3d 451 (2008) (firearm possessed on one day part of same criminal episode as events involving firearm two weeks later); State v. Lyons, 161 Or App 355 (1999)(recognizing that the crimes were not obviously part of a "single transaction," the court nevertheless found earlier predicate acts to be part of the same criminal episode as subsequent racketeering charge); State v. Schwartz, 173 Or App 301, rev denied, 333 Or 162 (2001) (implicitly finding one criminal episode for computer crimes which were committed weeks apart, but refusing to merge counts because there was a sufficient pause between the two offenses to prohibit merger.)
The state gains nothing with this creative aggregation nor does it lose anything if forced to choose between total aggregation and no aggregation at all. Contrary to the efforts of the prosecutor, the defendant is often presumptive probation regardless of the creative charging.
[1] (5)(a) For a crime committed on or after November 1, 1989, a conviction is considered to have occurred upon the pronouncement of sentence in open court. However, when sentences are imposed for two or more convictions arising out of the same conduct or criminal episode, none of the convictions is considered to have occurred prior to any of the other convictions arising out of the same conduct or criminal episode. [Emphasis added.]
[2] Potter was a double-jeopardy case, but the case law has been consistent for decades that the interpretation of "same criminal episode" is fungible whether the phrase is used in the context of re-constituting defendant's criminal history or double jeopardy.
