No. 577 August 21, 2024 431

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

TROY ELDON BAKER,

Defendant-Appellant.

Union County Circuit Court

19CR49618; A176810

Thomas B. Powers, Judge.

Argued October 3, 2023.

Nora Coon, 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.

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 Shorr, Presiding Judge, Mooney, Judge, and Pagán,

Judge.

SHORR, P. J.

Conviction on Count 1 reversed and remanded for entry 

of conviction for second-degree theft by receiving; remanded 

for resentencing; otherwise affirmed.
432 State v. Baker

SHORR, P. J.

Defendant appeals from his conviction for one 

count of first-degree theft by receiving, ORS 164.055(1)(c) 

(Count 1), based on his taking of multiple bags of recyclable cans from a commercial can collection site, La Grande 

Amusement (LGA), and redeeming the cans at a grocery 

store for $119.60 pursuant to Oregon’s Bottle Bill. Following 

the denial of his motion for judgment of acquittal, defendant was found guilty in a stipulated facts trial before the 

court.1 He now asserts that the trial court erred in denying his motion for judgment of acquittal, arguing that the 

conduct he engaged in does not constitute first-degree theft 

by receiving. We agree that entry of a conviction for firstdegree theft by receiving was error, and reverse and remand 

for entry of the lesser-included crime of second-degree theft 

by receiving.

When a dispute on appeal centers on the meaning 

of a statute defining an offense, the issue before us is one of 

statutory construction that we review for legal error. State 

v. Endicott, 296 Or App 644, 650, 439 P3d 510, rev den, 365 

Or 557 (2019). After resolving the meaning of the statute, we 

must determine whether a rational trier of fact could have 

found that the essential elements of the crime had been 

proved beyond a reasonable doubt, viewing the evidence in 

the light most favorable to the state. Id.

ORS 164.015 establishes five ways in which a person can commit “theft,” including:

“A person commits theft when, with intent to deprive 

another of property or to appropriate property to the person or to a third person, the person:

“* * * * *

“(5) Commits theft by receiving as provided in ORS 

164.095.”

ORS 164.095 defines ‘theft by receiving’ as follows:

1 Defendant pleaded guilty to a separate charge of second-degree theft, ORS 

164.045 (Count 4), based on other conduct. He does not assign error to that conviction. Two additional counts of unlawful entry into a motor vehicle were dismissed 

(Counts 2 and 3).
Cite as 334 Or App 431 (2024) 433

“(1) A person commits theft by receiving if the person 

receives, retains, conceals or disposes of property of another 

knowing or having good reason to know that the property 

was the subject of theft.

“* * * * *

“(3) ‘Receiving’ means acquiring possession, control or 

title, or lending on the security of the property.”

ORS 164.055 makes the crime of “theft by receiving” firstdegree theft, a Class C felony, if the theft by receiving is 

committed by “buying, selling, borrowing or lending on the 

security of the property.” ORS 164.055(1)(c).

The state alleged that multiple individuals stole 

an estimated 40 bags of cans from LGA. It further alleged 

that defendant then returned some of those cans to a grocery store and received a total of $119.60 for the redeemable 

10 cents per can deposit. The state charged defendant with 

first-degree theft by receiving based on the theory that he 

“disposed” of the stolen cans by “selling” them to the grocery store.2

 Defendant advances two arguments in support 

of his assertion that his actions did not constitute felonious 

first-degree theft: (1) that he merely “redeemed” or received 

a “refund” for the cans, and did not “sell” them, and thus 

did not commit theft by receiving in any manner listed in 

ORS 164.055(1)(c); and (2) that ORS 164.055(1)(c) was only 

intended to elevate punishments of subsequent receivers of 

stolen property, such as fences, and not initial thieves, and 

therefore it does not apply to him. Applying State v. Fonte, 

363 Or 327, 422 P3d 202 (2018), we conclude that the legislature did not intend first-degree theft by receiving to encompass the actions of an initial thief who subsequently sells 

the property that he initially stole.

In Fonte, the defendant took a pair of jeans from the 

sales floor of a department store and then took the jeans to 

the register to “return” them, giving the impression that he 

had previously purchased them. Id. at 329. The defendant 

2 Defendant was not charged for the initial theft of the cans from LGA. 

However, the trial court found that “there is no doubt that [defendant] took the 

cans from LGA.” Defendant does not contest the finding that he stole the cans 

from LGA, and indeed his arguments on appeal rely on his role as the initial 

thief.
434 State v. Baker

was charged with first-degree theft by receiving for “disposing” of the stolen goods by “selling” them to the store. Id. at 

330. The question before the Supreme Court was whether the 

legislature intended to punish such conduct as first-degree 

theft under ORS 164.055(1)(c). Id. at 331. The court engaged 

in an extensive discussion of the history of the crimes of 

theft and receipt of stolen property, from eighteenthcentury England through the 1971 consolidation of the various crimes into their current form. Id. at 332-37. In attempting to discern the intent behind the legislature’s designation of certain ways of committing theft as felonies, and thus 

subject to harsher punishment than misdemeanor theft, the 

court detected context clues that showed “some indication 

that the legislature intended to distinguish between an initial thief who takes property and a subsequent thief who 

receives that property.” Id. at 342. The court further noted 

that “when it singled out theft by receiving for harsher punishment, the legislature had a subsequent receiver, and not 

an initial taker, in mind.” Id. at 345. The court ultimately 

concluded that the legislative history demonstrated “a legislative intent to distinguish between theft by taking and theft 

by receiving and to punish the latter crime more harshly 

when it is committed by selling.” Id. at 347. The court went 

on to note that it could also “discern a legislative intent to 

make that elevated crime applicable to fences—dealers in 

the market for stolen goods.” Id.

We turn to the application of the law to the circumstances here. Because defendant was not a subsequent 

receiver in this situation, and rather was an initial thief 

who disposed of his ill-gotten gains for profit, we conclude 

that the legislature did not intend to punish his actions as 

felonious first-degree theft by receiving.

The state attempts to distinguish the present case 

from Fonte by emphasizing the combined factors that led 

to the conclusion in Fonte, namely that the court considered ORS 164.055(1)(c) to be inapplicable based on both the 

fact that the defendant was the initial thief and because he 

returned the property to its owner, rather than selling it 

to a third party in the market for stolen goods. The state 

is correct that the Supreme Court identified more than the 
Cite as 334 Or App 431 (2024) 435

“initial thief” factor in concluding that the actions in Fonte

did not constitute first-degree theft by receiving:

“We conclude that the legislature did not intend theft 

by receiving committed by selling to include a theft, such 

as that committed in this case, that is both committed by 

an initial thief and committed by fraudulently returning 

property to its owner in accordance with the owner’s return 

policy rather than by selling that property to a third party 

in the market for stolen goods. * ** [B]ecause defendant 

was the initial thief and because he returned the property 

to its owner, rather than selling it to a third party in the 

market for stolen goods, that crime is not punishable as a 

felony under ORS 164.055(1)(c).”

Fonte, 363 Or at 348 (emphasis added).

The court’s discussion of the terms “dispose of” and 

“sell” were influenced by its examination of the history of 

the statutes and distinctions between theft by taking and 

theft by receiving, and the legislature’s intent to punish certain classes of thieves more harshly. Id. at 337-47. We read 

the court’s extensive discussion of the theft statutes and 

conclusions regarding the legislative intent behind them to 

establish that the Fonte defendant’s role as the initial thief 

would have been independently sufficient to support its conclusion that he was not subject to ORS 164.055(1)(c). Indeed, 

as noted, the court heavily relied on the legislature’s specific intention to distinguish between the initial thief and 

the subsequent fencer of stolen goods and to treat the latter more harshly by treating theft by receiving under ORS 

164.055(1)(c) as a felony (without regard to the value of the 

stolen goods). It would be inconsistent with that legislative 

intention in enacting that statute to conclude that defendant 

could be both the initial thief and the subsequent fencer of 

the stolen goods. Because defendant in this case was an initial thief, it is unnecessary to reach the parties’ arguments 

regarding whether redeeming cans under the Bottle Bill 

constitutes “selling” for purposes of ORS 164.055(1)(c).

The parties agree that, under these circumstances, 

the appropriate remedy is to remand for entry of a conviction for the lesser-included crime of second-degree theft by 
436 State v. Baker

receiving.3 We agree. As noted above, a person commits 

theft by receiving when “with intent to deprive another of 

property or to appropriate property to the person or to a 

third person” the person “receives, retains, conceals or disposes of property of another knowing or having good reason 

to know that the property was the subject of theft.” ORS 

164.015, ORS 164.095. Such acts constitute second-degree 

theft, a Class A misdemeanor, when the value of the property is $100 or more and less than $1,000. ORS 164.045. It is 

undisputed that defendant knew that the cans were stolen 

and that he disposed of them when he relinquished possession and control of them to the grocery store, with intent to 

appropriate the value of the 10-cent refunds to himself.

Fonte noted that one intent of the consolidation 

of the theft statutes in 1971 was to eliminate procedural 

hurdles to theft prosecutions by making multiple means by 

which the deprivation of property occurs to all constitute 

theft. Fonte, 363 Or at 333, 337. Fonte made clear that, 

after that consolidation, there is some overlap in the acts 

that constitute theft. Id. at 343 (“[I]t may be possible for the 

same person to commit acts that constitute more than one 

type of theft under ORS 164.015. *** [I]n describing theft 

by taking as including the act of appropriating, the legislature describes both theft by taking and theft by receiving as 

including the act of disposing. The terms that the legislature 

used to describe those two types of theft demonstrate that, 

at least to some extent, the acts that constitute those crimes 

are overlapping.”). Notably, the legislative history discussed 

in Fonte that distinguished between subsequent receivers 

and initial thieves was specific to ORS 164.055(1)(c) and 

the legislature’s demonstrated intent to punish fences more 

harshly as felons. We therefore agree with the parties that 

a conviction for second-degree theft by receiving is appropriate, even in light of defendant’s status as the initial thief.

Conviction on Count 1 reversed and remanded for 

entry of conviction for second-degree theft by receiving; 

remanded for resentencing; otherwise affirmed.

3 The parties acknowledged at oral argument that that is the proper 

disposition.