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State v. Barboe

Summarized by: 

Date Filed: 11-07-2012
Case #: A143495
Sercombe, J. for the Court; Ortega, P.J.; and Brewer, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A143495.pdf

Criminal Law: Under ORS 161.155, Oregon does not recognize the aid-and-abet theory when the Defendant did not plan or commit the crime in question.

Defendant appealed his conviction following a bench trial for the fraudulent use of a credit card under ORS 165.055. Defendant was working as a waiter, when a man and a women came into the restaurant and charged $32.65 on their credit card and left Defendant a $75 tip. The credit card that was used was stolen. After discovering that the credit card was stolen, the police questioned Defendant about the card, and he denied knowing either patrons and denied knowing that the card was stolen. A year later, the police discovered Defendant and the female patron were relatives, and he was placed under arrest and charged with fraudulent use of a credit card. The trial court found the Defendant guilty under the aid-and-abet theory because he knowingly failed to disclose the female's identity, therefore, aiding in the crime. The State conceded that this theory is not recognized law in Oregon, but claimed that Defendant failed to preserve this objection at trial, and further it is not obvious that the Court convicted Defendant based on the erroneous application of the law. The Court found that this was obvious plain error by the trial court, and exercised their discretion under ORAP 5.45(1) to reverse the error. Reversed and remanded.