State v. Peterson

31

Argued and submitted August 7, 2018; convictions on Counts 3 and 5 reversed,

remanded for resentencing, otherwise affirmed February 3, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

ROY RICHARD PETERSON,

Defendant-Appellant.

Grant County Circuit Court

150125CR; A163668

482 P3d 68

Defendant appeals a judgment convicting him of first-degree theft (Count 2),

aggravated first-degree theft (Count 3), and possession of a stolen vehicle

(Count 5). The charges related to funds, equipment, and vehicles that defendant

acquired as chief of a voluntary fire department. Defendant was convicted of

Counts 3 and 5 for refusing to transfer possession of firefighting equipment and

vehicles when members of the department formed a tax-funded, rural fire protec-

tion district. On appeal, defendant argues that the trial court erred in denying

his motion for judgment of acquittal (MJOA) on Counts 3, in which he asserted

that he had an ownership interest in the equipment and vehicles and that the dis-

trict did not. Held: The trial court erred in denying defendant’s MJOA. Because

the district did not own the property at the time of defendant’s alleged offenses,

the evidence was insufficient to establish every element of Counts 3 and 5.

Convictions on Counts 3 and 5 reversed; remanded for resentencing; other-

wise affirmed.

Paul G. Crowley, Senior Judge.

Benjamin Boyd argued the cause for appellant. Also on

the brief were D. Zachary Hostetter and Hostetter Law

Group, LLP.

E. Nani Apo, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before DeHoog, Presiding Judge, and DeVore, Judge, and

Aoyagi, Judge.*

______________

* DeVore, J., vice Hadlock, J. pro tempore.

32 State v. Peterson

DeHOOG, P. J.

Convictions on Counts 3 and 5 reversed; remanded for

resentencing; otherwise affirmed.

Cite as 309 Or App 31 (2021) 33

DeHOOG, P. J.

Defendant appeals a judgment convicting him of

first-degree theft, ORS 164.055 (Count 2), aggravated first-

degree theft, ORS 164.057 (Count 3), and possession of a

stolen vehicle (PSV), ORS 819.300 (Count 5). Those charges

related to funds, equipment, and vehicles that defendant

acquired as chief of a voluntary fire department (the depart-

ment). Defendant was convicted after submitting false

invoices to the state to procure state grant funding and

refusing to transfer possession of firefighting equipment

and vehicles (the department property) when members of

the department formed a tax-funded, rural fire protection

district (the district or MRFD). Defendant’s opening brief

raises four assignments of error, all directed at his convic-

tions for aggravated theft and PSV.1 In his first assignment

of error, defendant argues that the trial court erred in deny-

ing his motion for judgment of acquittal (MJOA) as to Counts

3 and 5, because, as a matter of law, he could not have stolen

the department property—nor could his possession of that

property constitute PSV—when he had an ownership inter-

est in the property and the district, the purported victim of

his offenses, did not. The state responds that the evidence

was sufficient for the jury to find that, at the time of the

alleged offenses, defendant had no ownership interest in the

department property and that the district, in fact, was its

owner. For the reasons that follow, we agree that the trial

court committed reversible error in denying defendant’s

MJOA.2 Accordingly, we reverse defendant’s convictions on

Counts 3 and 5, remand for resentencing, and otherwise

affirm.

1

In supplemental briefing, defendant contends that the trial court commit-

ted plain and structural error as to all of his convictions when it instructed the

jury that its verdicts need not be unanimous. We reject that argument. State v.

Dilallo, 367 Or 340, 342, 349, 478 P3d 509 (2020) (declining to exercise discretion

to review, as plain error, the trial court’s instruction that the jury could convict

the defendant without reaching unanimity when the defendant did not preserve

an objection to that instruction and the record did not reveal whether the jury’s

guilty verdicts were unanimous). Defendant’s conviction under Count 2 is not

otherwise at issue in this appeal.

2

That conclusion obviates the need for further consideration of defendant’s

remaining assignments of error, which either reprise the arguments he makes

under his first assignment or raise issues related only to the convictions we

reverse.

34 State v. Peterson

In reviewing the denial of an MJOA, we view “the

evidence in the light most favorable to the state” to deter-

mine whether “a rational trier of fact, making reasonable

inferences, could find the essential elements of the crime

beyond a reasonable doubt.” State v. Hedgpeth, 365 Or 724,

730, 452 P3d 948 (2019) (internal quotation marks omitted).

We state the facts accordingly.

In 2001, a large fire spread through defendant’s

hometown of Monument, Oregon, burning thousands of

acres and multiple structures. In response, defendant, who

had been fighting fires since the age of 16, began organizing

the department to protect the rural region against future

fires and to supplement the fire protection provided by gov-

ernmental agencies, which did not fight structure fires in

that region. Defendant formed the group with the goal of

becoming a recognized, tax-funded fire district. See ORS

478.001(1)(d) (“ ‘District’ means a rural fire protection dis-

trict proposed to be organized or organized under, or sub-

ject to, [ORS chapter 478].”). Although the group established

a “steering committee” that helped guide the direction of

the department, there were no bylaws or any other form of

governing agreement that controlled the group’s operations.

Instead, defendant spearheaded the group’s efforts and was

the self-appointed organizer and acting fire chief of the

group.

Acting in that capacity, defendant opened a check-

ing account for the department to which only he had access.

Between 2001 and 2012, defendant procured firefighting

equipment and vehicles for the department’s use. Defendant

acquired the property through various means, including

donations, scavenging efforts, and purchases defendant

made with annual state and federal grant funding. The

property at issue on appeal was acquired through such

grants. Oregon Department of Forestry (ODF) employees

who administered the grant programs testified that owner-

ship of property acquired with grant funds vests in the orga-

nization awarded the grant. Defendant kept the equipment

that he acquired for the department at his private residence.

Despite the group’s goal of establishing an official fire

district, the department remained a voluntary organization

Cite as 309 Or App 31 (2021) 35

for a number of years. However, in 2007, another large fire

hit the region and reinvigorated community interest in

establishing a tax-based rural fire protection district. As

a prerequisite to circulating a petition to form an official

district, defendant formed an advisory committee, naming

all of the department’s volunteer members to the committee

and designating himself the committee chair. Although the

county initially rejected their petition, defendant success-

fully challenged that denial after using some of the depart-

ment’s grant money to hire an attorney. Due to the delays of

litigation, however, the department’s petition for formation

of a district was not approved by county officials and put to

a county-wide vote until November 2012. The county voted

in favor of the proposed district, and, shortly thereafter, on

November 21, 2012, the Grant County Court issued an order

officially forming and establishing the Monument Rural

Fire District (MRFD).3

Once formed, the district was initially governed

by a board composed primarily of members of the depart-

ment. Defendant was not on the board, but he was consid-

ered the district’s fire chief. The district’s initial board soon

disbanded. In December 2012, after having met only twice,

the entire board resigned, citing differences in opinion with

defendant in his role as fire chief. Those differences arose

when the board made preliminary efforts to operate the dis-

trict and made certain demands with which defendant did

not agree. For example, rather than defendant’s personal

post office box, which had served as the department’s mailing

address, the board attempted to designate the home address

of the new board president as the district’s official address.

Additionally, the district board demanded that defendant

turn over the department’s checkbook and financial records

and that defendant no longer use district vehicles for per-

sonal purposes. In response, defendant expressed frustra-

tion that the board was, in his opinion, improperly running

the district by holding meetings at a private residence and

3

Even though Monument Rural Fire District is the official name of the dis-

trict established in 2012, both the department and the district were referred

to interchangeably as the Monument Rural Fire Department or the Monument

Rural Fire District throughout their respective existences. To avoid confusion, we

refer to the volunteer organization as “the department,” and the county-approved

district as “the district” or MRFD.

36 State v. Peterson

attempting to conduct business without having filed the dis-

trict’s articles of incorporation with the Secretary of State,

a task the board did not complete until January 2014. At

trial, members of the board also testified that, in addition

to expressing those concerns, defendant had told the board

“ ‘Well, if that’s the way you guys feel, I’ll just step down.’ ”4

Despite uniformly testifying to that understanding of events,

the board’s entire membership subsequently resigned, citing

their differences with defendant as fire chief.

Following the board’s resignation, defendant con-

tinued fighting fire with the department property. In

January 2013, a month after the resignations, the county

court appointed three new members to the district board,

who then brought on two other individuals to fill the board’s

remaining vacancies. Although defendant applied to be on

the board, he was not selected. Defendant eventually turned

over the volunteer department’s ledger and checkbook as

requested, but he retained the department property.

When the new board held its first meeting in

February 2013, it formally appointed a district fire chief.

Defendant attended that meeting, but he did not express

interest in being appointed chief. Instead, the position went

to the only person who had expressed interest. At trial, the

board’s president testified that, as of that time, he under-

stood that defendant no longer had any involvement with

the district.

At the time of its February 2013 meeting, the board

was aware that the ownership of the department prop-

erty was in dispute and knew that defendant was keep-

ing it at his residence. As of that date, no action had been

taken to transfer title to any of the department property

to the newly established district. Nevertheless, the board

asked at the February 2013 meeting that defendant turn

the department property over to the district. According to

the testimony of the district’s fire chief, defendant declined,

asserting that “ ‘everyone needed to get together and figure

out the ownership interests first.’ ” No such meeting took

4

At trial, defendant denied having made that statement and said that he

had not resigned from his position with the department.

Cite as 309 Or App 31 (2021) 37

place, and, according to defendant, he continued operating

the department formerly known as the Monument Rural

Fire Department under the new name of “Top Rural Fire

Department” or “Top Rural Fire District.” Defendant went

so far as to transfer title of some of the department vehi-

cles to Top Rural. Days later, on February 21, 2013, the dis-

trict fire chief sent defendant a letter demanding that he

“return any and all belongings” of the Monument Rural Fire

Department in his possession. Defendant did not comply

with that request. In October 2013, the state police seized

the department property from defendant’s land pursuant to

a warrant. As relevant here, defendant subsequently was

charged with aggravated first-degree theft and PSV, alleged

to have occurred “on or about February 21, 2013,” the date of

the district chief’s demand.

At trial, the state’s theory was that defendant had

committed the charged offenses when he withheld the

department property from the district after receiving its

February 21, 2013, demand letter. Defendant’s primary

argument in response was that the case concerned a civil

property dispute, not criminal wrongdoing. At the conclusion

of the state’s case-in-chief, defendant moved for judgment of

acquittal on the charges of aggravated first-degree theft and

PSV. Defendant argued that he had an ownership interest

in the department property that precluded the state’s asser-

tion that it was stolen, because, he contended, ownership of

property held by a voluntary association, such as the depart-

ment, vests jointly in the association’s individual members.

Consequently, defendant argued, he could not be convicted

for having stolen property from the district—or for being in

possession of property that was stolen—because the pros-

ecution had not proved that the district had an ownership

interest in the property superior to his own. Defendant also

asserted that, because title and ownership had already

vested in the membership of the department as a voluntary

association, the mere creation of an official district did not

result in a transfer of those interests to the district. Finally,

defendant argued that the district could not have owned

the department property at the time of the alleged offenses,

because it had not yet filed its articles of incorporation and

therefore lacked legal capacity to own property. As a result,

38 State v. Peterson

defendant argued, the prosecution had not met its eviden-

tiary burden as to the challenged charges.

The court denied defendant’s MJOA, ruling that

the issues were matters for the jury and emphasizing the

prosecution’s evidence that the department had “morphed

into” the district. The jury ultimately convicted defendant

for first-degree theft, aggravated first-degree theft, and

PSV. Defendant now appeals.5

In his first assignment of error, defendant argues

that the trial court erred in denying his motion for judgment

of acquittal, which, as noted, was premised on a lack of evi-

dence that the department property was stolen. Although

defendant’s arguments rely on a somewhat involved analysis

of various statutes and common law principles governing

legal entities, property rights, and theft, those arguments

reduce to the rather straightforward assertion that he could

not be convicted on the challenged counts because (1) he had

an ownership interest in the department property at the

time of the alleged offenses and (2) the district did not. We

proceed to consider those arguments.

Defendant first asserts that, as a “voluntary, unin-

corporated association,” the department “had no legal exis-

tence separate from its members.” See Cousin v. Taylor et al.,

115 Or 472, 475, 239 P 96 (1925) (a “voluntary, unincorpo-

rated association, which was not organized to conduct busi-

ness for a pecuniary profit, and possessed none of the ele-

ments of a partnership * * * had no legal existence distinct

from its membership”). Defendant argues that, rather than

the department owning anything, its members, including

defendant himself, held, as individuals, title and ownership

of the department’s vehicles and equipment. See State of

Oregon v. Rice, 206 Or 237, 242, 291 P2d 1019 (1956) (“[I]t

must be acknowledged that title and ownership of the prop-

erty of a voluntary association rests in the individual mem-

bers, subject only to the right of enjoyment as agreed among

5

Defendant’s first-degree theft conviction (Count 2) related to his receipt

of grant funds in his capacity as the department’s fire chief. Defendant did not

challenge the sufficiency of the evidence to support that conviction, and, other

than the supplemental assignment of error that we have already rejected, that

conviction and the facts underlying it are not at issue on appeal.

Cite as 309 Or App 31 (2021) 39

themselves.”). As a result, defendant argues, he, and not the

department, had an ownership interest in the department

property.

Second, defendant argues that the district had no

such interest in the department property at the time in ques-

tion. In support of that argument, defendant notes that all

of the property had been acquired before the district came

into existence in November 2012. Defendant further argues

that, just because the department and the district shared

common membership, it does not follow that the district

acquired ownership rights over the department’s assets.

Cf. Marvin v. Manash, 175 Or 311, 320, 153 P2d 251 (1944)

(“even though membership and general setup and purpose

were identical,” a labor union “was powerless * * * to trans-

act the business” of a distinct unincorporated association

(internal quotation marks omitted)). Further yet, defendant

argues that, at the relevant time, the district lacked the

legal capacity to own property. For support, defendant looks

to ORS 198.782, which prohibits a municipal corporation

from “transact[ing] business of any kind until a notice of

incorporation or formation has been filed with the Secretary

of State by that corporation.” In defendant’s view, an entity

that cannot transact business cannot acquire property

rights from another entity, and, here, because the district

did not file its articles of incorporation until January 2014, it

could not have acquired an ownership interest in the depart-

ment property before then. Defendant concludes, therefore,

that, because he had an ownership interest in the depart-

ment property in February 2013 and the district did not, he

could not have committed theft from the district when he

refused to turn over the department property in response to

the district’s demand, nor could any vehicle that he retained

be deemed “stolen.”

In contrast to defendant’s legal arguments, the

state characterizes the relevant question as an issue of

fact, namely, whether “the record contain[s] sufficient evi-

dence from which a rational trier of fact could find that

the [district] was the ‘owner’ of the firefighting vehicles

and equipment that were the subject of defendant’s convic-

tions for aggravated first-degree theft and possession of a

stolen vehicle.” The state argues that “the record contains

40 State v. Peterson

ample evidence from which a jury could have found that

the informal fire department became the district, and that

defendant’s ownership interest in the property therefore

ceased when he ended his involvement with the district.”

(Emphasis in original.) Contrary to defendant’s argument

that the department and the district were two distinct enti-

ties, the state argues that there was sufficient evidence in

the record for the jury to conclude that, after the district

was established in November 2012, there was only a sin-

gle entity and that the department had ceased to exist.

The state further argues that the record demonstrates that

defendant ended his affiliation with that entity, after it had

become the district, when he offered his resignation at the

December 2012 meeting. Therefore, the state argues, when

the newly appointed fire chief requested in February 2013

that defendant return the department property, defendant

had lost any ownership interest that he may previously have

held and committed the charged crimes when he failed to

comply with that request.

The state contends that, in arguing that the court

should have granted his motion for judgment of acquittal,

defendant ignores many competing inferences that were

available on the record. The state notes that defendant’s goal

from the outset in 2001 was to establish an official rural fire

protection district. The state emphasizes the many efforts

that defendant undertook to achieve that goal, including

filing the required petition and hiring an attorney to con-

test its initial rejection by the county. The state also points

out that, after the district was established and formed in

November 2012, defendant appeared to briefly serve as the

district’s fire chief before stepping down due to disagree-

ments with the district board. Lastly, the state argues

that a “rational juror could conclude that defendant’s act of

handing over control of the [department’s] checking account

to the board suggests that defendant understood that the

account belonged to the district” and that the department

and “the official district were one and the same.” Therefore,

the state concludes, a rational juror could have found that

the voluntary department became an official district, and

not “a second fire department for others to run as an official

fire district” while defendant continued with the voluntary

Cite as 309 Or App 31 (2021) 41

department. (Emphasis in original.) As a result, the state

asserts, the trial court did not err in denying defendant’s

MJOA, because there were sufficient facts in the record

for the jury to find that defendant committed the charged

offenses by unlawfully withholding the department prop-

erty in February 2013.

As noted, when reviewing the denial of an MJOA,

we must view the facts in the light most favorable to the state

and determine whether, when so viewed, the record contains

“sufficient evidence from which a rational trier of fact, mak-

ing reasonable inferences, could find the essential elements

of the crime beyond a reasonable doubt.” Hedgpeth, 365 Or

at 730 (internal quotation marks omitted). However, “[w]hen

legal disputes are encompassed in the arguments for and

against a motion for judgment of acquittal, we resolve them

as we would any other legal question.” State v. Turnidge

(S059155), 359 Or 364, 455, 374 P3d 853 (2016), cert den, 137

S Ct 665 (2017). Here, the parties dispute whether defen-

dant’s first assignment of error raises questions of fact or

law. We conclude that the dispositive question is one of law

and that the trial court incorrectly decided that question

in denying defendant’s MJOA; accordingly, the trial court

erred when it denied defendant’s motion.

We begin our analysis with a review of the ele-

ments that the state had to establish to convict defendant of

aggravated first-degree theft, ORS 164.057, and PSV, ORS

819.300. First, as relevant here, ORS 164.057(1) provides

that “[a] person commits the crime of aggravated theft in

the first degree” if the person “violates ORS 164.055 with

respect to property” that has a value of $10,000 or more.

The internally referenced statute, ORS 164.055, defines

theft in the first degree and, in turn, relies on the definition

of theft provided in ORS 164.015.6 And, in relevant part,

ORS 164.015(1) states that a person commits theft when

the person “[t]akes, appropriates, obtains or withholds * * *

property from an owner thereof” with the “intent to deprive

6

As relevant to this appeal, ORS 164.055(1)(a) provides that “[a] person com-

mits the crime of theft in the first degree if, by means other than extortion, the

person commits theft as defined in ORS 164.015 and * * * [t]he total value of the

property in a single or aggregate transaction is $1,000 or more[.]”

42 State v. Peterson

another of property or to appropriate property to the person.”

As implicated by defendant’s MJOA and his argument on

appeal, the critical element of aggravated first-degree theft

is the requirement that the property at issue be appropri-

ated or withheld “from an owner thereof.” That is, the state

was required to prove that the district, as the purported

victim of defendant’s theft, was the owner of the department

property when defendant rejected the district’s demand to

turn that property over.

Second, ORS 819.300 provides that “[a] person com-

mits the offense of possession of a stolen vehicle if the person

possesses any vehicle which the person knows or has rea-

son to believe has been stolen.” Although ORS 819.300 does

not incorporate ORS 164.015 or otherwise expressly include

theft in its definition of PSV, there is no apparent dispute

that, to establish the “stolen” element of that offense, the

state was required to prove that one or more of the firefight-

ing vehicles in defendant’s possession had been the subject

of a theft within the meaning of ORS 164.015.7 That, like

the allegation of aggravated first-degree theft, required the

state to establish that the property at issue was not defen-

dant’s but, instead, property of another. The state under-

stood that burden and, accordingly, pursued the theory at

trial that the district owned the department property in

February 2013. As the state asserted at trial and maintains

on appeal, when, at that time, defendant refused to hand

the department property over as the district requested, he

committed theft by unlawfully withholding the district’s

property and committed PSV by continuing to possess one

or more firefighting vehicles that he had stolen from the

district. At the time of defendant’s MJOA, the trial court

agreed that the jury could find that the department property

belonged to the district, based on the court’s understanding

that the department had “morphed” into the district and,

presumably, assumed ownership of the department’s prop-

erty. We conclude otherwise.

7

We note that both parties requested the same uniform jury instruction

regarding this charge, UCrJI 1823. In giving that instruction, the trial court

informed the jury that, to find defendant guilty of the PSV charge, it must find

that defendant had “possessed a vehicle that was the subject of theft” and that

defendant “knew or believed the vehicle was the subject of theft.”

Cite as 309 Or App 31 (2021) 43

In reaching our conclusion, we agree with defen-

dant that the district could not have been the owner of the

department property in February 2013, when the alleged

offenses occurred. That conclusion follows in large part

from the statutes that governed the formal establishment of

MRFD as a rural fire protection district. First, ORS chap-

ter 478 broadly governs rural fire protection districts within

counties. Second, because they are statutorily designated

as “district[s],” rural fire protection districts are subject

to the formation provisions of ORS chapter 198. See ORS

198.010(14) (“A rural fire protection district organized under

ORS chapter 478” is a district subject to ORS chapter 198.);

ORS 198.705(8) (“ ‘District’ has the meaning given that

term in ORS 198.010[(14)].”); and ORS 198.715 (“[A]ll dis-

trict formation or change of organization proceedings shall

be initiated, conducted and completed as provided by ORS

198.705 to 198.955.”). Third, under ORS chapter 297, made

applicable here by ORS 198.782 (the text of which is set out

below), a rural fire protection district also is a “municipal

corporation” subject to its terms. ORS 297.405(5)(c) (defining

“municipal corporation” to include districts).

Two provisions within ORS chapter 198 particularly

inform our analysis. First, in part, ORS 198.820(1) provides

that, after a district has been approved by a county vote,

the county court or board of county commissioners “shall

enter an order establishing and forming the district.” See

also ORS 198.820(3) (“From the date of the formation order

the district shall be considered established.”).8 Second, ORS

198.782 dictates when a municipal corporation may begin

conducting business. In full, ORS 198.782 provides:

“No municipal corporation, as defined in ORS 297.405,

incorporated or formed in this state after October 3, 1979,

shall receive or disburse moneys or transact business of

8

Defendant argues that, under ORS 65.051, the district’s corporate exis-

tence did not begin until it filed its articles of incorporation. See ORS 65.051

(explaining commencement of corporate existence for nonprofit corporations).

However, the provision that defendant cites does not apply to corporations formed

under other statutes, as is the case here. See ORS 65.074(2) (“A corporation that

is subject to regulation under another statute of the state may not be incorpo-

rated under this chapter if the corporation must be organized under the other

statute.”).

44 State v. Peterson

any kind until a notice of incorporation or formation has

been filed with the Secretary of State by that corporation.”

Applying those statutes to the facts of this case,

we find no support for the state’s position that MRFD had

acquired ownership of the department property by the

time that its new chief sent defendant the demand letter

in February 2013. We recognize that the record reflects

that the district was formed and established by order of

the county court under ORS 198.820(1) in November 2012,

well before the time of defendant’s alleged crimes. Contrary

to the state’s fact-based argument, however, nothing in

the record supports the view that, in recognizing MRFD

as a formal fire protection district, the county somehow

converted—or “morphed,” to use the trial court’s term—the

voluntary department into the district or that the order

establishing the district otherwise extinguished the depart-

ment as a matter of law.

Moreover, whether or not ownership of the depart-

ment property vested in its individual members, there is no

dispute that the department initially owned the allegedly

stolen property.9 As the ODF employees that ran the fire-

fighting grant programs testified, ownership and title to

equipment and supplies purchased with grant funds, as the

department property was, vests in the entity that receives

those funds. And, as the district’s board members acknowl-

edged at trial, no action had been taken to transfer own-

ership or legal title from the department to MRFD before

the district demanded the equipment from defendant in

February 2013.

Furthermore, nothing in ORS 198.820(1) or in any

other provision of law that the state identifies suggests that,

in “establishing and forming the district,” the county court

or board of county commissioners somehow effected such a

9

Notably, it is undisputed that, due to the nature of the grant programs that

funded the department’s acquisition of the property at issue, ownership and title

to the property initially vested in the department. Moreover, as a member of that

voluntary, unincorporated department, defendant shared those property inter-

ests with other members of the association. See Rice, 206 Or at 242 (“[I]t must be

acknowledged that title and ownership of the property of a voluntary association

rests in the individual members, subject only to the right of enjoyment as agreed

among themselves.”). The state does not argue otherwise.

Cite as 309 Or App 31 (2021) 45

transfer from the department to the district. Finally, even

though the district existed in February 2013 by virtue of the

2012 order recognizing its formation, it was incapable of con-

ducting business until January 2014, when it filed its arti-

cles of incorporation. See ORS 198.782. Thus, to the extent

that the state argues that the district somehow acquired

property interests independently of the order establishing

it, we see nothing in the record or the law to support that

theory. That is, the state does not argue that a legal entity

that, by law, cannot engage in business transactions can

nonetheless acquire ownership of property from another

entity, even assuming that it could otherwise own property,

a matter we need not decide.

As noted, the state does not directly address defen-

dant’s legal argument in contending that defendant stole

from MRFD. 309 Or App at 40-41. Rather, it contends, as

the trial court evidently understood, that the jury could have

found as a factual matter that “the informal fire department

became the district, and that defendant’s ownership interest

in the property therefore ceased when he ended his involve-

ment with the district.” (Emphasis in original.) The state

does not explain, however, how the jury’s factual findings

can determine either the legal status of the department—

including whether it had “ceased to exist”—or the capacity

of the district to acquire property interests from the depart-

ment. Thus, even if, as the state argues, defendant somehow

relinquished his property rights to the department’s equip-

ment and vehicles by declining to continue any involvement

with the district, that would not support the state’s conten-

tion that the district acquired—either then or at some ear-

lier, unspecified time—property interests previously vested

in defendant, which defendant then stole. As a result, no

factual finding by the jury could establish the requisite ele-

ment that the property allegedly stolen and then possessed

by defendant was property of another, namely, the newly

formed district.

For similar reasons, the state’s argument that the

evidence was sufficient for the jury to find that defendant

had relinquished any right to the department property by

resigning as fire chief is also unavailing. Because, as we have

just explained, the department—not the district—owned

46 State v. Peterson

the property at the time of defendant’s alleged offenses, a

factual determination as to defendant’s involvement with

the district at that time would ultimately be immaterial.

Accordingly, the evidence was insufficient to establish every

element of aggravated first-degree theft and PSV, and the

trial court therefore erred in denying defendant’s MJOA as

to Counts 3 and 5.

Convictions on Counts 3 and 5 reversed; remanded

for resentencing; otherwise affirmed.