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FILED: February 02, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CHET MICHAEL WILSON,

Defendant-Appellant.

Marion County Circuit Court
07C50549
A140479

L. E. Ashcroft, Judge.

Submitted on July 29, 2010.

Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.

HASELTON, P. J.

Reversed and remanded.

HASELTON, P. J.,

Defendant, who was convicted following a bench trial of second-degree theft, appeals. He assigns error to the trial court's determination that he committed second-degree theft by "Aiding or Abetting after the fact." In particular, defendant contends that, even viewing the evidence most favorably to the state, the theory on which the trial court expressly predicated his conviction was inapposite as a matter of law. We agree with defendant, and, accordingly, we reverse his conviction and remand for further proceedings.

On appeal from a judgment of conviction, we recount the facts in the light most favorable to the state. State v. Andrews, 174 Or App 354, 356, 27 P3d 137 (2001), abrogated in part on other grounds by State v. Rutley, 202 Or App 639, 645, 123 P3d 334 (2005), aff'd in part and rev'd in part, 343 Or 368, 171 P3d 361 (2007).(1) Early the morning of September 26, 2007, defendant and his friend, Down, drove to a Plaid Pantry in Salem, on their way to an outdoor party at a local quarry. Defendant, who was driving, backed his vehicle into a parking space on the north end of the parking lot, near where some plastic soda and milk crates were stored. The back "hood" to defendant's trunk was open. Jeffers, the Plaid Pantry employee working that morning, thought that defendant's choice of parking spots was odd because there were plenty of parking spaces available immediately in front of the store.

At the Plaid Pantry, defendant and Down encountered Selvidge, a friend of theirs. Defendant and Down walked into the Plaid Pantry. Down "walk[ed] around" the store, acting "strangely" and "looking directly" at Jeffers. After a few moments, Down went back outside while defendant stayed to purchase beer. While defendant was still inside, Down loaded between 20 and 40 of the plastic crates into the back of defendant's vehicle.(2) About half an hour after defendant, Down, and Selvidge had left, Jeffers noticed that the crates were missing and called the police.

After leaving the Plaid Pantry, defendant, Down, and Selvidge proceeded to the quarry, where the party was taking place. There, Down unloaded the crates. Down burned a couple of the crates in a bonfire, but kicked most of them into some bushes. Defendant and some other people at the party also used a few of the crates for sitting on.

Salem Police Officer Ramirez, who had interviewed Jeffers at the Plaid Pantry about the theft, encountered defendant, Down, and Selvidge at the quarry about an hour later that same morning.(3) Defendant told Ramirez that he did not take the crates and that he did not know that Down had loaded the crates into his vehicle until after they arrived at the quarry. Selvidge confirmed that only Down had loaded the crates into defendant's vehicle.

Ultimately, the state charged defendant and Down with second-degree theft, ORS 164.045 (2007), amended by Or Laws 2009, ch 11,