State v. Sorrow

40

Argued and submitted May 3, reversed and remanded June 3, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

CHRISTOPHER DANIEL SORROW,

Defendant-Appellant.

Coos County Circuit Court

18CR29531; A172166

489 P3d 1127

To obtain access to mental health treatment, defendant handed a bank teller

a note that stated, “I have a bomb. Put the money in the bag,” then sat in the lobby

of the bank with the money, waiting for police to arrive. At the close of defendant’s

bench trial for first-degree theft, ORS 164.055, and second-degree robbery, ORS

164.405, defendant argued that the state was required to prove that defendant

had had the intent to permanently deprive the bank of its money, and that the

state had failed do so. The trial court concluded that the state only needed to

prove that defendant had exercised control over the money, and it found defen-

dant guilty except for insanity. Defendant appeals, contending that the court

applied an incorrect legal standard in finding him guilty. Held: The trial court

erred in concluding that theft merely required proof that defendant intended to

exercise control over the bank’s money without considering whether defendant,

in exercising that control, intended to cause a permanent or nearly permanent

loss to the bank.

Reversed and remanded.

Martin E. Stone, Judge.

Andrew D. Robinson, Deputy Public Defender, argued

the cause for appellant. Also on the briefs was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section, Office

of Public Defense Services.

Leigh A. Salmon, Assistant Attorney General, argued

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

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

LAGESEN, P. J.

Reversed and remanded.

Cite as 312 Or App 40 (2021) 41

LAGESEN, P. J.

Defendant appeals a judgment following a bench

trial finding him guilty except for insanity of second-degree

robbery, ORS 164.405, and first-degree theft, ORS 164.055,

and placing him under the jurisdiction of the Psychiatric

Security Review Board. The findings of guilt were based on

evidence that defendant, who is mentally ill, obtained money

from a credit union teller after passing her a note stating,

“I have a bomb. Put the money in the bag.” Defendant notes

evidence that he engaged in that conduct not for the purpose

of stealing the money but, instead, to attract the attention

of police in the hopes of obtaining mental health services.

He contends that, in view of that evidence of his purpose,

there was not sufficient evidence to find that he intended

to deprive the credit union of its money permanently, as

the state was required to show. Alternatively, defendant

contends that the trial court applied the wrong legal stan-

dard in convicting him, erroneously omitting to determine

whether defendant had the intent to cause the bank a per-

manent loss. The state responds that neither contention is

preserved and that the evidence was sufficient to support

any required findings. We agree with the state that defen-

dant’s challenge to the legal sufficiency of the evidence is not

preserved for our review and reject it for that reason without

further discussion. Defendant’s other contention, however,

is preserved and, ultimately, correct. We therefore reverse

and remand.

The relevant facts are not disputed. Defendant

suffers from schizoaffective disorder with bipolar symp-

toms and has a long mental health history. While highly

intoxicated, and in the hopes of getting needed mental

health treatment by being arrested, he walked into the

First Community Credit Union in North Bend, approached

a teller, and handed her a note. The note stated, “I have a

bomb. Put the money in the bag.” She did so, placing $1,413

in the bag. Defendant then walked toward the doors to the

bank but did not leave. Instead, he turned around and went

into the lobby, sat down, and started smoking a cigarette.

He put the bag of money on the chair next to him. Another

teller, meanwhile, set off the alarm designed to summon

police. When the officers arrived, they entered the bank,

42 State v. Sorrow

announced their presence, and arrested defendant without

incident. He was taken to a hospital for medical evalua-

tion, where it was determined that his blood alcohol content

was .217.

Defendant was charged with first-degree theft and

second-degree robbery. Because of his mental condition, he

was found unfit to proceed and committed to the state hos-

pital for the purpose of restoring his capacity to stand trial.

Once his capacity was restored, defendant waived his right

to a jury trial and the matter was tried to the court. At the

close of the case, defendant’s main theory was that he did

not commit theft (or the robbery, which required proof that

he was committing theft) because the state did not prove

that he intended to deprive the credit union of the money in

the way required to prove theft because his actions were a

“cry for help” rather than an intent to take the credit union’s

money. Defendant argued:

“With regard to the intent question, the defense is actually

going to start with the theft in the first degree charge—

“* * * * *

“* * * since, as part of the theft, that the State has to

prove in this case [defendant] had the intent to deprive.

In this case it would be the money in question, which is

the subject of the theft. The defense’s argument would be

that it was not [defendant’s] intent to deprive the bank of

the money, as [defendant] indicated he—he didn’t want the

money, but this is a situation where this was essentially,

I’m going to use my own terms here, a cry for help.

“As [defendant] indicated, he was trying to get help.

There was reference to I believe a few other contacts with

law enforcement, Bay Area Hospital, things of that nature,

and the defense believes that the facts would actually sup-

port that the—there’s no intent to commit theft.

“As the video shows, [defendant] did go into the bank,

approach the teller, did receive the money based on I believe

it was State’s Exhibit 10, which was the alleged note in

question, but [defendant] turned around, walked back to

the door, never left the premises, went over, sat in the chair,

put the money on the—on the table next to him, and it sat

there.

Cite as 312 Or App 40 (2021) 43

“[Defendant] indicated that he knew the officers were

going to show up. As the video showed, it was about a

five- to six-minute timeframe from when [defendant] sat

down, put the money on the table, when the officers came

in, placed him under arrest without incident and escorted

him out. All the money that was taken, I believe it was the

$1413, that was all recovered. [Defendant] had no money on

his—it was all sitting right there.”

Consequently, according to defendant, the state had not

shown that he committed either theft or robbery.

In response to that argument, the state argued

that, to prove theft, it only needed to show that defendant

intended to exercise control over the bank’s money, not that

defendant intended to deprive the bank of its money for any

particular length of time:

“Theft can be accomplished in two different ways. One is to

appropriate money to one’s self, which includes within that

definition the exercise or control over property that’s stolen.

“* * * * *

“* * * He clearly didn’t have permission to have that

money, and when he took possession of that bag, he exer-

cised control over that money. Granted, it was for a short

period of time.

“* * * * *

“* * * But this would be similar to a situation of somebody

who shoplifts a candy bar and shoves it in their pocket. The

question is, is it an accident, or did they intend to leave the

store or deprive or appropriate the candy to themselves?

“* * * * *

“The bank, granted, it wasn’t for a long period of time,

but that was their property which he took and deprived

them of it for that short period of time.”

The trial court ultimately agreed with the state

that it need only show that defendant exercised control over

the credit union’s money, and intended to do so, not that

defendant intended to deprive the credit union of the money

for any particular length of time:

44 State v. Sorrow

“The argument [defense counsel] makes about this

would not be a theft because he didn’t, you know, leave

the credit union with—with the money. He sat at the table

with the money. I don’t agree. I—I mean, clearly he exer-

cised control over the money. It wasn’t his money. It was the

credit union’s money, more than a thousand dollars, gave

the note to the teller. She hands him over the money. He

has control over that money, and that constitutes a theft

under Oregon law.”

Based on that finding and that understanding of the law,

the trial court found defendant guilty.

Before us defendant argues, as noted, that the trial

court erred in concluding that theft required merely proof

that defendant intended to exercise control over the credit

union’s money for some period of time, no matter how short

the period. He contends that theft requires proof, instead,

that defendant intended to effect a permanent deprivation of

the credit union’s money. The state responds that defendant

did not preserve the claimed error, and that it is not plain

that the court applied the wrong legal standard in finding

defendant guilty.

As an initial matter, we reject the state’s conten-

tion that the issue is not preserved. True, defendant’s argu-

ments below were not as refined as they are on appeal. But

defendant squarely argued that theft required proof that

defendant intended to deprive the credit union of its money,

something that was not shown by defendant obtaining the

money as part of his attempt to get arrested and in view

of the fact that defendant never left with the money. The

state, plainly understanding defendant’s argument to be

that it had to show that defendant intended more than tem-

porary deprivation, responded that it need only show that

defendant intended to control the money, even if just for a

short period of time. Finally, in explaining its verdict, the

trial court accepted the state’s control argument, necessar-

ily rejecting defendant’s argument about the state needing

to demonstrate an intent to cause a nontemporary depriva-

tion.1 Under those circumstances, the issue about the nature

1

We are appreciative of the trial court’s expression on the record of the basis

for its ruling on the parties’ dispute about the legal standard, and its articulation

of the standard it was applying. In doing so, the court not only facilitated our

Cite as 312 Or App 40 (2021) 45

of the intended deprivation was adequately raised and ruled

on, and, consequently, preserved for our review. See, e.g.,

State v. Zimmerman, 309 Or App 447, 451 n 2, 483 P3d 39

(2021) (question of whether trial court applied correct legal

standard in bench trial adequately preserved where parties

argued the legal question to the trial court and the trial

court ruled on it).

As for whether the state could prove that defendant

committed theft by a mere showing that defendant intended

to exercise control over the credit union’s money, without

showing that defendant intended to do so in a way that

resulted in a permanent deprivation, that is a question of

statutory construction, and we review the trial court’s rul-

ing for legal error. State v. Browning, 282 Or App 1, 2, 386

P3d 192 (2016), rev den, 361 Or 311 (2017).

On that question, the legislature has done most of

the work for us through its statutory definitions. Theft, by

statute, requires proof that the person acts “with intent to

deprive another of property or to appropriate property to

the person or to a third person.” ORS 164.015. As we have

explained, “Both ‘deprive’ and ‘appropriate’ are defined for

the purposes of the theft statutes by ORS 164.005, and each

definition refers to an interference with property that is

either permanent or so extensive as to deprive the property

owner of the major portion of the economic value or benefit

of the property.” Browning, 282 Or App at 6; ORS 164.005(1)

(defining “appropriate” to mean to “[e]xercise control over

property of another * * * permanently or for so extended a

period or under such circumstances as to acquire the major

portion of the economic value or benefit of such property”

(emphasis added)); ORS 164.005(2) (defining “deprive” to

mean to “[w]ithhold property of another * * * permanently

or for so extended a period or under such circumstances

that the major portion of its economic value or benefit is lost

to that person” or “[d]ispose of property in such manner or

review process in this case, more importantly, it safeguarded defendant’s stat-

utory right to an appeal and complied with its obligations as articulated in our

case law and that of the Supreme Court. See State v. Colby, 295 Or App 246, 251,

433 P3d 447 (2018) (“[A] court cannot refuse to disclose the legal principles that

it has applied in construing the elements necessary to adjudicate guilt, when a

defendant properly raises that issue.”).

46 State v. Sorrow

under such circumstances as to render it unlikely that an

owner will recover such property”). In other words, theft in

Oregon “requires a thief to intend permanent or virtually

permanent loss to the owner of the possession and use of

property.” State v. Christine, 193 Or App 800, 809, 93 P3d

82, rev den, 337 Or 476 (2004). A person who intends to cause

only temporary loss or displacement of possession does not

commit theft. See id. Consequently, the trial court erred in

concluding that theft merely required proof that defendant

intended to exercise control over the credit union’s money

without considering whether defendant, in exercising that

control, intended to cause a permanent or nearly permanent

loss to the credit union.

The error requires us to reverse and remand. State

v. Massey, 249 Or App 689, 693-94, 278 P3d 130 (2012),

rev den, 353 Or 203 (2013) (reversal required in bench trial

when trial court applies incorrect legal standard in reach-

ing verdict). Because defendant’s robbery conviction is pred-

icated on defendant having committed theft, it too must be

reversed and remanded.

Reversed and remanded.