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by: Ryan Scott • April 11, 2024 • no comments

Today, the Oregon Supreme Court issued an opinion in State v. Azar. The split opinion significantly narrowed the scope of one particular theory of felony computer crime. Even if you don't have a felony computer crime case, it is worth reading -- both the majority opinion and the dissent -- on the circumstances in which legislative history can narrow the scope of an otherwise broadly written statute.

And the opinion also suggests a potential defense to theft by selling in (of course) a footnote.

2 Under ORS 164.095(1),“[a] person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.”
Although “disposes” is not defined by statute, defendant does not dispute that selling property that a person knows or should know is stolen constitutes theft by receiving. See State v. Farmer, 44 Or App 157, 160, 605 P2d 716 (1980) (reaching that conclusion based upon ORS 164.055(1)(c), which provides that theft by receiving constitutes theft in the first degree when “committed by buying, selling, borrowing or lending on the security of the property”). We assume for purposes of the present discussion that selling stolen property with the requisite mental state constitutes theft by receiving, but we express no opinion on when in the course of a transaction an online sale qualifies as “dispos[ing],” whether at the time of the sale, at the time the property is physically transferred, or at some other time. [Emphasis added.]

If I understand the point of this footnote, the Court is saying that selling stolen property is not necessarily "disposing of the property," and therefore not necessarily theft-by-receiving, until the property is transferred in some way. So, for example, entering into an agreement to sell stolen property, or even receiving money for said property, may not constitute theft-by-receiving until the property is delivered.

I don't anticipate many situations where this would arise, but if it does, citing that footnote at MJOA might make you look like a genius.