State v. Odell ( 2023 )

812
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted March 8, affirmed July 6, petition for review denied
November 2, 2023 (371 Or 522)
STATE OF OREGON,
Plaintiff-Respondent,
v.
DODY ANN ODELL,
Defendant-Appellant.
Washington County Circuit Court
20CR51322; A176203
Ramón A. Pagán, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert A. Koch, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
Nonprecedential Memo Op: 326 Or App 812 (2023) 813
EGAN, J.
Defendant appeals a judgment of conviction for first-
degree theft, ORS 164.055, specifically theft of lost or mis-
laid property, ORS 164.065. Defendant raises two assign-
ments of error: first, arguing that the trial court erred when
it denied her motion for a judgment of acquittal; second,
arguing that the trial court misinterpreted ORS 164.065,
and therefore erred in finding her guilty of theft of lost or
mislaid property. We affirm.
When reviewing a denial of a motion for a judgment
of acquittal, we view the facts and all reasonable inferences
that may be drawn from them in the light most favorable
to the state to determine whether “a rational trier of fact
could have found the essential elements of the crime proved
beyond a reasonable doubt.” State v. Wakefield, 292 Or App
694, 695, 425 P3d 491 (2018). We will affirm the judgment
below if we determine that there was little likelihood that
the error affected the verdict. State v. Scatamacchia, 323
Or App 31, 34, 522 P3d 26 (2022), rev den, 370 Or 827 (2023).
In her first assignment of error, defendant argues
that ORS 98.005, ORS 98.015, and ORS 98.025, the “finders-
keepers” laws, provide an automatic safe-harbor defense
to a charge of theft under ORS 164.065 and, therefore, the
trial court should have granted her motion for a judgment
of acquittal.
Specifically, defendant points to ORS 98.005, which
provides:
“(1) If any person finds money or goods valued at
$250 or more, and if the owner of the money or goods is
unknown, such person, within 10 days after the date of
the finding, shall give notice of the finding in writing to
the county clerk of the county in which the money or goods
was found. Within 20 days after the date of the finding, the
finder of the money or goods shall cause to be published in
a newspaper of general circulation in the county a notice
of the finding once each week for two consecutive weeks.
Each such notice shall state the general description of the
money or goods found, the name and address of the finder
and final date before which such goods may be claimed.
814 State v. Odell
“(2) If no person appears and establishes ownership of
the money or goods prior to the expiration of three months
after the date of the notice to the county clerk under sub-
section (1) of this section, the finder shall be the owner of
the money or goods.”
The difficulty with defendant’s argument is that,
even assuming that the various “finders-keepers” laws do in
fact create a “safe-harbor” period in which a person cannot
be found guilty of theft of lost or mislaid property, an issue
we do not decide, defendant is not able to avail herself of that
protection. That is because the “finders-keepers” laws only
apply if the owner of the money or goods is unknown. State
v. Vanburen, 262 Or App 715, 721, 337 P3d 831 (2014) (citing
State v. Pidcock, 306 Or 335, 340, 759 P2d 1092 (1988) (“If
the owner is known, ORS 98.005 does not apply.”)). Legally
sufficient evidence supported the trial court’s finding that
defendant “saw the person that dropped” the money before
she picked up the envelope; that is, a factfinder could find
(and did find) that the owner of the money was known to
defendant.
As to defendant’s second assignment of error, argu-
ing that the trial court misinterpreted ORS 164.065, even
assuming that that assignment of error was preserved,
any error was harmless: The trial court found defendant
saw the person who dropped the money, and as noted,
the “finders-keepers” laws only apply if “the owner of the
money or goods is unknown.” Vanburen, 262 Or App at 721;
Scatamacchia, 323 Or at 36 (affirming despite instructional
error where there was “little likelihood” the error “affected
the outcome”).
Affirmed.