FILED: December 26, 2001

STATE OF OREGON,

Respondent,

v.

KEVIN ANTHONY COX,

Appellant.

Appeal from Circuit Court, Marion County.

Jamese Rhoades, Judge.

Argued and submitted December 21, 2000.

Irene B. Taylor, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Laura S. Anderson, Assistant Attorney General, argued the cause for respondent.

With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Deits, Chief Judge, and Armstrong, Judge.

DEITS, C. J.

Affirmed.

Armstrong, J., dissenting.

DEITS, C. J.

Defendant appeals his conviction, after a jury trial in Marion County Circuit Court, of two counts of aggravated theft and one count of criminal mischief. ORS 164.057; ORS 164.965. Defendant assigns error to the trial court's denial of his motion to dismiss count 2 of the indictment, which alleged the crime of aggravated theft in the first degree, on the ground that he had previously been prosecuted in Multnomah County for the same offense and, accordingly, the Marion County prosecution is barred by double jeopardy under Article I, section 12, of the Oregon Constitution. We affirm.

We state the facts, which are largely undisputed for the purpose of this appeal, consistently with the jury's verdict. Some time between 4:00 p.m. on February 15 and 5:00 a.m. on February 16, 1998, defendant stole over 20,000 pounds of aluminum from Microwave Tower Service in Marion County. On February 17, defendant met with an employee of Metro Metals, Incorporated, a scrap metal dealer, for the purpose of loading, transporting, and selling the aluminum to Metro Metals. Defendant and an accomplice followed the Metro Metals vehicle that transported the load to Portland. Upon arrival, the Metro Metals personnel became suspicious that the aluminum was stolen and contacted the police, who came and, after investigating the matter, arrested defendant and his accomplice.

On February 25, 1998, defendant was charged by indictment in Multnomah County with "Aggravated Theft in the First Degree by Receiving." Count 1 alleged that, on or about February 17, 1998, defendant "did unlawfully and knowingly commit theft of aluminum, of the total value of $10,000 or more, the property of MICROWAVE TOWER SERVICE[.]" On April 16, 1998, defendant pled guilty in Multnomah County Circuit Court to aggravated theft in the first degree "by receiving."

On April 6, 1998, before he entered his plea in Multnomah County, defendant was charged by indictment with aggravated theft in Marion County. On October 28, 1998, defendant was convicted by a Marion County Circuit Court jury of aggravated theft in the first degree. Count 2 of the Marion County indictment alleged that, "on or between 2/16/98 and 2/17/98, in Marion County, Oregon," defendant did "unlawfully, feloniously and knowingly commit theft of aluminum metal pipes and beams, of the total value of Ten Thousand Dollars or more, the property of Microwave Tower Service."

The statutory provisions relating to theft are set out in ORS 164.015 et seq. ORS 164.015 provides, as relevant:

"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:

"(1) Takes, appropriates, obtains or withholds such property from an owner thereof; or

"* * * * *

"(5) Commits theft by receiving as provided in ORS 164.095."

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." ORS 164.095(1). A person commits theft in the first degree if the total value of the property is $200 in a case involving theft by receiving or $750 in any other case. ORS 164.057(1) defines aggravated theft in the first degree as theft in the first degree of property (other than a motor vehicle for personal use) having a value of $10,000 or more.

As noted above, defendant pled guilty in Multnomah County to aggravated theft in the first degree by receiving. The question on appeal is whether defendant's prosecution in Marion County for aggravated theft, pending at the time of his guilty plea in Multnomah County, was barred by double jeopardy. Defendant makes no statutory former jeopardy claim. (1) He challenges the Marion County prosecution only on the ground that it violates the state constitutional double jeopardy provision, which provides that "[n]o person shall be put in jeopardy twice for the same offen[s]e[.]" Or Const, Art I,