State v. Waterhouse , 359 Or. 351 ( 2016 )

No. 28 May 5, 2016 351
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
SUNIE SHAWN WATERHOUSE,
Petitioner on Review.
(CC D121196M; CA A153037; SC S062799)
On review from the Court of Appeals.*
Argued and submitted September 10, 2015.
Sarah Laidlaw, Deputy Public Defender, Salem, argued
the cause and filed the brief for petitioner on review. With
her on the brief was Ernest G. Lannet, Chief Defender, Office
of Public Defense Services.
Susan Yorke, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. With
her on the brief were Ellen F. Rosenblum, Attorney General,
and Anna M. Joyce, Solicitor General.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer Justices.**
The decision of the Court of Appeals is affirmed and the
judgment of the circuit court are affirmed.
______________
** Appeal from Washington County Circuit Court, Gayle A. Nachtigal,
Judge. 266 Or App 346, 337 P3d 195 (2014)
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
352 State v. Waterhouse
Cite as 359 Or 351 (2016) 353
BALDWIN, J.
Defendant took a pickup truckload of scrap metal
items from the metal recycling bin of a Washington County
microchip manufacturing plant and was subsequently
charged with third-degree theft, a criminal charge appli-
cable when the value of the item or items stolen is less
than $100. See ORS 164.043 (so stating). At the close of the
state’s case-in-chief, defendant unsuccessfully moved for a
judgment of acquittal, arguing that the evidence presented
by the state had failed to establish that the items he had
taken possessed actual—as opposed to speculative—value.
Defendant was subsequently convicted of the theft charge
against him. The Court of Appeals affirmed that conviction,
holding that the evidence adduced at trial had been suffi-
cient to permit a reasonable juror to find that the items sto-
len by defendant had indeed possessed some market value.
State v. Waterhouse, 266 Or App 346, 337 P 3d 195 (2014).
For the reasons set out below, we affirm the Court of Appeals
decision.
In reviewing denial of a motion for a judgment of
acquittal, this court sets out the pertinent facts and all rea-
sonable inferences that may be drawn from those facts in
the light most favorable to the state. State v. Walker, 356
Or 4, 6, 333 P 3d 316 (2014). The relevant facts are undis-
puted. At approximately 3:00 a.m. one morning in March
2012, a security guard at microchip manufacturer Maxim
Integrated Products (Maxim) observed defendant and a
second man drive their pickup truck into the fenced service
area of the company’s Hillsboro campus and park next to
a large dumpster-like recycling container filled with scrap
metal. Using closed circuit cameras, the security guard
watched as the two men spent the next 15 to 20 minutes
loading large scrap metal items from the company’s recy-
cling container into the back of their pickup truck. Among
the items taken from the container were metal chairs, a
large shelving unit, miscellaneous metal pieces, and long
sections of gutter material. One of the police officers subse-
quently involved in defendant’s arrest would later describe
the volume of metal being hauled away as a “full” truck bed
of large metal objects.
354 State v. Waterhouse
As defendant and his partner loaded their truck,
the company security guard reported their actions to local
law enforcement authorities. Consequently, three Hillsboro
Police Department patrol units were waiting for the pair
as they attempted to exit the property with the truckload
of metal. Both men were arrested and booked into the
Washington County Jail.
Defendant was subsequently charged with third
degree theft under ORS 164.043. The criminal complaint
stated, in pertinent part, that
“[t]he defendant, on or about March 17, 2012, in Washington
County, Oregon, did unlawfully commit theft of scrap
metal of some value and the property of Maxim Integrated
Products.”
(Emphasis added.) ORS 164.043(1) provides:
“(1)  A person commits the crime of theft in the third
degree if:
“(a)  By means other than extortion, the person com-
mits theft as defined in ORS 164.015; and
“(b)  The total value of the property in a single or an
aggregate transaction is less than $100.”
By its plain terms, ORS 164.043 required the state
to prove several different elements in order to convict defen-
dant of the charge against him. First, the state was required
to show that defendant had committed statutory theft under
ORS 164.015; i.e., had intentionally taken, appropriated,
obtained, or withheld property owned by another for the
purpose of depriving someone of that property or appro-
priating it to defendant’s own use. See ORS 164.015(1) (so
stating). Second, the state was required to establish that
the property taken had some monetary value, specifically,
more than zero, but less than $100. See ORS 164.043(1)(b)
(providing that theft of property valued at less than $100
chargeable as third degree theft). Valuing the items stolen
was governed by ORS 164.115 which—then as now—defined
the term “value” as used in the theft statutes as either
(1) market value, (2) replacement value, or (3) a presumed
value of less than $50 in the event actual value could not be
reasonably ascertained:
Cite as 359 Or 351 (2016) 355
“[T]he value of property shall be ascertained as follows:
“(1)  Except as otherwise specified in this section, value
means the market value of the property at the time and
place of the crime, or if such cannot reasonably be ascer-
tained, the cost of replacement of the property within a rea-
sonable time after the crime.
“* * * * *
“(5)  When the value of property cannot reasonably
be ascertained, it shall be presumed to be an amount less
than $50 in a case of theft * * *.”
At trial, the Maxim security guard who had first
observed defendant and his partner taking items from the
company’s scrap metal container testified that Maxim regu-
larly contracted with a recycling company to haul away the
container once it was full. According to the security guard’s
testimony, the recycling company paid Maxim for the metal
collected from the container in amounts that varied depend-
ing on the weight and type of metal contained in each load.
The security guard, however, did not know the average price
paid for a full container of scrap metal, nor did he testify
as to how much the recycling company would have paid for
the specific pieces that defendant took. The state offered no
other evidence as to the value of those items.
At the close of the state’s case-in-chief, defendant
moved for a judgment of acquittal, arguing that the state
had failed to prove that the property taken had actual value:
“[T]he State has only presented evidence that there is a col-
lection service that does collect metal. They have not been
able to place—they have not been able to place any kind of
monetary value on it, nor have they been able to indicate
that the service in fact would pay for the goods requested.”
“* * * * *
“And so in this situation, all we have is speculative testi-
mony. The security officer for Maxim said that the property
was metal, they have a service that collects metal property,
but he indicated that they only collect full dumpsters full
of property. He didn’t indicate that they would be willing to
drive and pick up and pay for, you know, this specific chair
and bookcase, nor did he indicate that they would in fact
have found that material was valuable at all.”
356 State v. Waterhouse
The trial court denied defendant’s motion, and a jury ulti-
mately found defendant guilty of third-degree theft.
On appeal, defendant contended that the trial court
had erred in denying his motion for a judgment of acquit-
tal. In doing so, he reiterated his position that the state had
failed to produce sufficient evidence from which a jury could
find that the scrap metal items taken by defendant had any
value at all. According to defendant, the evidence adduced
at trial had demonstrated only that the recycling company
might have paid Maxim the scrap value of those items,
not that such a transaction was a foregone conclusion. The
upshot of that, defendant continued, was that the state had
presented the jury with evidence relating to value that was
only speculative.
A unanimous Court of Appeals panel disagreed.
Noting first that, under ORS 164.115(1), it was possible to
establish that a stolen item had some monetary value by
demonstrating its market value at the time and place of the
crime, the Court of Appeals opined that
“[i]t follows that evidence showing that a stolen item has
some market value—i.e., not no market value—is sufficient
to prove that the item has the requisite value to support a
conviction for theft in the third degree, whether or not the
specific market value of the item is proved.”
Waterhouse, 266 Or App at 350 (emphasis in original). That
“some value” standard, the Court of Appeals continued, had
been met by evidence demonstrating the existence of a will-
ing buyer and willing seller for the stolen items, the only
elements under Court of Appeals case law needed to estab-
lish an actual market in which the stolen items would have
value in trade. Id. The court reasoned that there was ample
evidence in the record establishing that market value:
“The employee’s testimony at trial established that the
victim had an active and ongoing contract to sell the con-
tents of the drop box to a buyer, the recycling company. The
employee testified that the buyer paid the victim for metal
materials left in the drop box and that the stolen items,
which were taken by defendant from the drop box, were all
made of metal. Thus, defendant is incorrect: the evidence in
this case demonstrates that the recycling company would
Cite as 359 Or 351 (2016) 357
have paid for the stolen items, not merely that they may
have. Furthermore, according to the employee, the amount
paid for such items depends on the weight of the item and
the type of metal from which it is made. This further indi-
cates that some amount is always paid for metal items
from the drop box, even if the precise amount may vary.
As discussed above, given those facts, it is irrelevant that
the employee could not specify the precise amount that the
buyer would have paid the victim for the stolen items.”
Id. at 351 (emphasis in original).
The Court of Appeals concluded that, viewed in the
light most favorable to the state, the evidence adduced at
trial was sufficient to allow a reasonable juror to find that
there was a market for the items stolen by defendant, thereby
imbuing those items with a sufficiently non-speculative mar-
ket value for purposes of third-degree theft. As a result, the
Court of Appeals concluded that the trial court had ruled
correctly in denying defendant’s motion for acquittal and
affirmed defendant’s judgment of conviction.
On review, defendant takes issue with the Court of
Appeals’ conclusion that proof of the precise value of the sto-
len items at issue here was not required to establish third-
degree theft. Defendant begins by correctly noting that,
under the Oregon Criminal Code, property is expressly
defined as
“any article, substance or thing of value, including, but not
limited to, money, tangible and intangible personal prop-
erty, real property, choses-in-action, evidence of debt or of
contract.”
ORS 164.005(5) (emphasis added). The term “value,” defen-
dant argues, specifically means “monetary value,” a conclu-
sion he reaches by reference to:
• Webster’s Third New Int’l Dictionary 2530
(unabridged ed 2002) (defining “value,” in part, as
“the monetary worth of something”).
• State v. Whitley, 295 Or 455, 458-59, 666 P2d 1340
(1983) (in which the court opined that it did not
believe that “ ‘symbolic value’ or ‘value in use’ ” was
358 State v. Waterhouse
intended by the legislature to serve as sufficient
evidence of value).
• The various theft statutes set out in ORS 164.043
through ORS 164.057, all differentiated by degree—
third-degree theft to first-degree aggravated theft—
based on the monetary value of the items stolen.
Building on that foundation, defendant contends
that the state’s failure to produce evidence regarding the
actual monetary value of the stolen items in this case means
that it also failed to establish that those items were, in
fact, “property” for purposes of the Oregon Criminal Code.
First, according to defendant, evidence of value was miss-
ing because there was no proof that the recycling company
would have actually paid anything for the stolen objects had
they been picked up as part of a full load. Defendant’s point
appears to be that, absent some specific evidence of the items’
individual scrap values, it is not unreasonable to infer that
the recycling company might have deemed those particular
items worthless and refused to pay for them when it came
to collect the recycling bin. Second, defendant argues that
there was a similar lack of value-related evidence based on
the individual qualities of the items taken; i.e., there was no
evidence that the stolen items retained some value because
they had once been used as chairs, a shelf unit, gutters, etc.
And finally, defendant argues that, even if it were possible
to infer that the stolen items would have, indeed, added
some worth—however slight—to the overall value of a full
recycle bin, there was no evidence that the stolen pieces had
any value by themselves outside of that context. According
to defendant, without any evidence of specific values, the
items taken by defendant cannot be viewed as “property” for
purposes of third degree theft and he cannot be convicted of
that crime.
We agree with defendant that, under the Oregon
Criminal Code, the concepts of “property” and “value” are
inextricably linked in that the former does not appear to
exist apart from some evidence of the latter, at least in mat-
ters involving offenses against property. Although that con-
nection was codified at ORS 164.005(5) as part of the crim-
inal code revision that took place in 1971, the notion that a
Cite as 359 Or 351 (2016) 359
stolen item must have some value in order to be considered
property is rooted even deeper in this court’s case law. See,
e.g., State v. Albert, 117 Or 179, 186, 242 P 1116 (1926) (not-
ing that “stolen property must have value in order to be the
subject of larceny”); State v. Poyntz, 168 Or 69, 71, 120 P2d
966 (1942) (holding that, for purposes of petty larceny, the
term “property” “implies not only ownership, but also that
the thing owned possesses some value, however small”). We
disagree with defendant, however, as to the nature of the
evidence needed to establish the value of property for pur-
poses of third-degree theft.
Oregon’s theft statutes are graduated in severity,
beginning with third-degree theft under ORS 164.043, a
class C misdemeanor, and progressing through second-
degree theft under ORS 164.045, a class A misdemeanor,
first-degree theft under ORS 164.055, a class C felony, up to
first-degree aggravated theft under ORS 164.057, a class B
felony. The primary factor differentiating those particular
theft crimes is the statutory threshold value of the property
stolen: For purposes of second-degree theft, the stolen item
must be valued at a minimum of $100, for first-degree theft,
a minimum of $1000, and for first-degree aggravated theft,
a minimum of $10,000.
The statute delineating third-degree theft, in con-
trast, contains no threshold value requirement at all, only
a ceiling—less than $100. Consequently, the minimum val-
uation needed to establish that a stolen item falls within
third-degree theft and the minimum valuation needed to
simply establish that an item is, in fact, “property,” are iden-
tical; both require only that the item possess some value, the
standard articulated in the state’s charging complaint.
That similarity underscores an important feature
of the various “offenses against property” contained in
ORS chapter 164: within the chapter, the materiality of a
stolen item’s value as an element of an offense can differ
significantly depending on the crime. The respective min-
imum values, for example, that help delineate first-degree,
second-degree, and first-degree aggravated theft all clearly
constitute a material element of the offense each is associ-
ated with; in order to prove those offenses, the state must
360 State v. Waterhouse
also prove that the value of the stolen item or items meets
each applicable statutory minimum. But as the provisions
for third-degree theft demonstrate, not all property-related
crimes contain a specific value requirement. Some—like
first-, second-, and third-degree robbery—are similar to
third-degree theft in that the only value requirement artic-
ulated by the statutes defining those crimes is that the item
stolen must constitute “property;” i.e., possess some value.1
Thus, for some crimes involving the unlawful taking of
another’s property, the exact worth of the item stolen is not
material to the crime, so long as the stolen item possesses
some value.
We have discussed that notion of materiality before.
In State v. Broom, 135 Or 641, 646, 297 P 340 (1931) this
court held that, with regard to the crime of “larceny from
a person,” the value of a stolen item could be established by
inference alone. In Broom, the defendant and his wife had
disarmed two Tillamook County sheriff’s deputies late one
night after drawing down on the pair using an inoperative
handgun. Ordering the officers on their way after forcing
them to abandon their weapons, the defendant took one of
the deputies’ captured handguns and held it for a week before
returning it in person to the Tillamook County Sherriff’s
Office. His lawyer, who accompanied him, explained that
the defendant had taken the handgun because he had mis-
taken the officers for “highwaymen.”
The defendant was subsequently convicted of
“[l]arceny by stealing from the person,” Oregon Code, title
XIV, ch III, § 14-317 (1930), an offense not unlike present-
day third-degree robbery in that it, too, failed to prescribe a
specific threshold value for the property stolen. On appeal,
1
Under ORS 164.395, for example, a person commits third-degree robbery
“if in the course of committing or attempting to commit theft or unauthorized
use of a vehicle as defined in ORS 164.135 the person uses or threatens the
immediate use of physical force upon another person with the intent of:
“(a)  Preventing or overcoming resistance to the taking of the property or
to retention thereof immediately after the taking; or
“(b)  Compelling the owner of such property or another person to deliver
the property or to engage in other conduct which might aid in the commission
of the theft or unauthorized use of a vehicle.”
ORS 164.395(1) (emphasis added).
Cite as 359 Or 351 (2016) 361
although this court was careful to acknowledge that stolen
items must, indeed, have some value to be considered prop-
erty under the criminal statutes, it was untroubled by the
lack of direct evidence regarding the specific value of the
property stolen. In upholding the defendant’s conviction, the
court noted, among other things, that
“the definitions of ‘larceny’ always embrace ownership and
value, and very often use the term as ‘the property of’ the
victim; ‘the property of’ designating both ownership and a
thing of some value.
“In the case at bar, no witness testified directly as to the
value of the pistol claimed to have been stolen from the per-
son of Lucas. However, both courts and text-writers hold
that the value of the article forming the subject-matter of
the larcenous act may be shown inferentially. In the crime of
larceny from the person, ‘the value of the property is imma-
terial, so that it have some value. There is no occasion, as
there is in larceny, for alleging the value, as the punish-
ment is not made to depend on the value of the property
taken.’ ”
Broom, 135 Or at 647 (internal citations omitted; emphasis
added).
We find that idea—the notion that a stolen item’s
value can be established inferentially in cases where value is
not a material element of the crime—to be instructive here.
Contrary to the position taken by defendant, the state was
not required to establish a specific value for the scrap metal
stolen in this case in order to convict defendant of third
degree theft.2 In light of Broom, we conclude that all that
2
Defendant’s reliance on State v. Whitley, 295 Or 455, 666 P2d 1340 (1983)
for the contrary proposition is unavailing. In Whitley, a demonstrator at the
University of Oregon had disrupted a public meeting on campus by setting a
gasoline-soaked rag on fire and flinging it in front of the speaker’s podium, where
it was quickly extinguished. The demonstrator was subsequently charged with
arson, a crime that required the state to prove, in part, that the thing burned (the
rag) was property. The state, however, failed to allege or present evidence that
the rag possessed the requisite value needed to establish that fact. In reversing
the defendant’s arson conviction, this court wrote:
“We do not know why Oregon’s legislature required that the defendant
intentionally damage ‘property’ by starting a fire before this crime can be
completed, but in any event this is a deviation from the Model Penal Code.
By injecting the necessity that the state prove that what was burned was
‘property,’ the state is bound by the definition of ‘property’ found in ORS
362 State v. Waterhouse
was required in this case was evidence from which the jury
could reasonably infer that the stolen metal scrap possessed
“some value,” the minimum needed to define it as “property.”
In coming to that conclusion, we recognize that
Broom is superficially distinguishable insomuch as the
crime at issue in that case was not predicated on a specific
range of values, unlike third degree theft, where the value
range falls essentially between some value greater than
zero but less than $100. Here, however, that fact is simply
a difference without a distinction. Given that both crimes
are based on the same de minimis value threshold—some
value greater than zero—in our view, the materiality of that
valuation to both crimes is also the same, rendering both
provable by inference.
The final issue we must consider is whether there
was sufficient evidence from which the trier of fact could
infer that the items of property stolen by defendant indeed
possessed some value. See Sate v. Walker, 356 Or at 6, State
v. Rader, 348 Or 81, 91, 228 P3d 552 (2010) (standard of
review on a motion for judgment of acquittal is “whether
there was sufficient evidence in the record from which a
reasonable trier of fact could find the elements of the crime
beyond a reasonable doubt * * *”). Here, the state adduced
evidence that: (1) Maxim routinely placed scrap metal items
in a recycling container on their fenced-in property and did
not place the items in a trash container; (2) Maxim had
an ongoing contractual relationship with a recycling com-
pany that paid Maxim varying amounts for the contents of
the container based on the weight and type of metal; and
(3) defendant and his partner took scrap metal items from
the container during the middle of the night, items that they
presumably believed had some value. A trier of fact could
164.005(5). This means that as an element of proof the state must prove
the property had ‘value’ as defined by this section. Because this section also
defines ‘property’ for purposes of the various theft statutes, we do not believe
that ‘symbolic value’ or ‘value in use,’ as argued by the state, was intended by
the legislature as sufficient evidence of value.”
Id. at 458-59 (footnote omitted).
Here, in contrast, the state alleged that the stolen property had some value
and produced sufficient evidence at trial for the jury to conclude the same. As a
result, Whitley is inapplicable here.
Cite as 359 Or 351 (2016) 363
reasonably infer from that evidence that there was (1) a mar-
ket for scrap metal based on weight and type; and (2) that
the items selected by defendants had value in that market.3
Based on that evidence, a reasonable trier of fact
could find beyond a reasonable doubt that the items of scrap
metal taken by defendant had some market value. We agree
with the Court of Appeals that, when viewed in the light
most favorable to the state, the evidence was sufficient to
allow a reasonable juror to find that there was a market for
the items stolen by defendant, thus establishing that those
items possessed a sufficiently non-speculative market value
to properly render them “property” for purposes of third
degree theft.
The decision of the Court of Appeals is affirmed and
the judgment of the circuit court are affirmed.
3
Our analysis and decision in this case does not rely on the statutory pre-
sumption that “[w]hen the value of property cannot reasonably be ascertained,
it shall be presumed to be an amount less than $50 in a case of theft[.]” ORS
164.115(5).