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Theft by Selling, Theft by Taking and Proportionality

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by: Ryan • July 30, 2013 • one comment

Assume a defendant goes into a grocery store and picks up, say, a package of razors, with the intent of stealing them. He then immediately goes to customer return, and he "returns" the razors for cash, about $9.

When he picked up the razors, he was guilty of a misdemeanor Theft III. When he "returned" them, the state chose to charge him with a felony, under the theory that he was guilty of theft by selling.

I've written about the proportionality problems with this dynamic before. But there are a couple of things I want to emphasize.

First, this situation is truly unlike any other in Oregon criminal law. This is because the Oregon Supreme Court has held that -- other than theft by extortion -- all other variations of theft (theft by taking, theft by receiving, theft by selling) all constitute the same crime. State v Cox, 336 Or 284, 293, 82 P3d 619 (2003). (“As we have explained, defendant's separate acts of taking and receiving the same aluminum from the same owner constituted a single theft under ORS 164.015.” Emphasis added.)

In other words, the separate acts aren't repeated occurrences of the same crime (like, for example, two near simultaneous counts of sex abuse 1 from touching the breasts and the buttocks). Rather, two very different acts (taking the property from the shelves with intent to steal and returning the item to the store for a refund) constitute the same crime, even when one act occurs in November and the other in December in a different county (Cox again). It comes down to the fact that a defendant who steals property only steals it once, even if different variations of that theft occur during the course of continuing possession of that property.

All that you might already know. What you may not know is another line from Cox, which at least hints at the problem when the misdemeanor theft by taking is transmuted into a felony theft by selling.

“Other than theft by extortion, however, those separate definitions do not create distinct offenses with their own punishments. . . .” Cox at 292. [Emphasis added.]

Of course, when the same person takes the property and then "sells" it, the state believes two distinct punishments are available to them. I think Cox suggests otherwise. A person who has already stolen the property cannot steal it again unless there is a break in possession of that property.

And I'll end with this quote from State v. Pirkey, 203 Or 697, 281 P2d 698 (1955), overruled on other grounds, Klamath Falls v. Winters, 289 Or 757 (1980).

The Oregon Constitution provides that "all penalties shall be proportioned to the offense. * * *” Oregon Constitution, Article I, Section 16. In the case at bar the offense, that is to say, the specific act which is prohibited, is clearly defined, but it is difficult to see how two separate and distinct punishments can both be proportionate to the same identical offense when the sentencing court is given no discretionary power to choose between them.