State v. Ricker

PER CURIAM

Defendant was charged with two counts of theft I, ORS 164.055, and one count of theft II. ORS 164.045. The three-year Statute of Limitations of ORS 131.125(5) had run. Nevertheless, the state argued that the limitation period was subject to ORS 131.125(6)(a), because the indictment alleged that defendant had breached a fiduciary duty that he owed the victims. Defendant filed a demurrer to the indictment, which the trial court sustained. The state appeals and we affirm.

ORS 131.125(6)(a) provides, in part:

“If the offense has as a material element either fraud or the breach of a fiduciary obligation, prosecution may be commenced within one year after discovery of the offense by an aggrieved party * * * and who is not a party to the offense * * (Emphasis supplied.)

In State v. Mills, 77 Or App 125, 711 P2d 209 (1985), we interpreted the “material elements” of a crime to be those elements that must be proved to obtain a valid conviction. 77 Or App at 129. Although the indictment alleges that defendant breached a fiduciary obligation to the victims, a fiduciary obligation is not a material element of the crime of theft, which can be proved without evidence of fraud or breach of a fiduciary duty. Therefore, ORS 131.125(6)(a) does not apply.

Affirmed.