State V Phillips
100 July 23, 2025 No. 653
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHADWICK L. PHILLIPS,
aka Chadwick Lawrence Phillips,
Defendant-Appellant.
Multnomah County Circuit Court
21CR20991; A181633
Heidi H. Moawad, Judge.
Argued and submitted June 24, 2025.
Francis C. Gieringer, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Affirmed.
Nonprecedential Memo Op: 342 Or App 100 (2025) 101
TOOKEY, P. J.
Defendant appeals a judgment of conviction rais-
ing seven assignments of error. Defendant was caught
loading a steel workbench and storage rack into his truck.
The two items had been left outside the victim’s machine
shop. Defendant was charged with first-degree theft, ORS
164.055. During trial, defendant moved for a judgment of
acquittal (MJOA), which the trial court denied. The jury
found defendant not guilty of first-degree theft, but guilty
of the lesser-included offense of second-degree theft, ORS
164.045. Having reviewed the record and each of defendant’s
assignments of error, we affirm.
On appeal, in his first and second assignments of
error, defendant argues that the trial court erred when it
denied his MJOA and when it entered a conviction for second-
degree theft, contending that the evidence did not permit a
nonspeculative inference that the steel workbench and rack
were worth $100 or more. Defendant also argues that the
trial court erred in relying on the replacement value of the
property.
Assuming without deciding that those arguments
are preserved, we do not think that they have merit. When
reviewing the denial of an MJOA, we view “the evidence in
the light most favorable to the state to determine if the state
presented sufficient evidence from which a rational trier of
fact, making reasonable inferences, could find the essential
elements of the crime beyond a reasonable doubt.” State v.
Hedgpeth, 365 Or 724, 730, 452 P3d 948 (2019) (internal
quotation marks omitted).
The value of stolen property means “the market
value of the property at the time and place of the crime,
or if such cannot reasonably be ascertained, the cost of
replacement of the property within a reasonable time after
the crime.” ORS 164.115(1). Market value is “ ‘what a willing
buyer will pay a willing seller.’ ” State v. Mays, 294 Or App
229, 233, 429 P3d 1061 (2018), rev den, 364 Or 407 (2019)
(quoting State v. G. L. D., 253 Or App 416, 426, 290 P3d 852
(2012), rev den, 354 Or 597 (2013)). In other words, “market
value is the price at which the property could have been sold
102 State v. Phillips
at the time and place it was stolen.” State v. Slater, 310 Or
App 746, 754, 487 P3d 59 (2021). Alternatively, the value of
stolen goods may be determined by the cost to replace them
rather than by their market value. “To rely on replacement
value as the fallback the state must present evidence that
it is not possible to ascertain market value to a reasonable
certainty by an investigation that is reasonable under the
circumstances.” Mays, 294 Or App at 235. However, courts
may also consider the cost of replacing stolen items as a fac-
tor in determining their fair market value. G. L. D., 253 Or
App at 426.
Here, the workbench and rack had been left out-
side for over “three and a half years,” and they were rusty.
Nevertheless, the victim, B, testified that he “was not get-
ting rid of the items.” He testified that the steel workbench
was “professionally made,” and that the rack was “custom
made.” B owned the machine shop since 2002, and he had
experience working with steel. B expressly testified that “if
you wanted to buy them we may agree on a price of 1,200.”
B estimated that the cost of the steel to build the workbench
was $1,000 to $1,500, and that the cost of the steel to build
the rack was $200 to $400. B explained that if he bought
steel that had rust on it, “it’s usually at a steep discount,”
but he also testified that “[i]f I took that bench and I clean it
up and I make it look really nice and I paint it[,] it’s gonna
be worth a whole lot more than if it has rust on it.”
In so testifying, it was not always clear whether
B was referring to the market value of the workbench and
rack or how much it would cost to build replacements. But
viewing the evidence in the light most favorable to the state,
it was legally sufficient to deny the MJOA. It was reasonable
for the trial court to view B’s testimony as about market
value because B recovered the items. As a result, there was
no need for B to testify about replacement costs. And even if
B was talking about the cost of steel to build replacements,
replacement costs can be a factor in determining the fair
market value of an item. G. L. D., 253 Or App at 426.
In arguing otherwise, defendant relies on Slater,
but his reliance on that case does not advance his argu-
ment because, in Slater, the state expressly argued about
Nonprecedential Memo Op: 342 Or App 100 (2025) 103
the replacement value of stolen items and the trial court
expressly relied on the fallback method of replacement costs.
310 Or App at 755. Here, by contrast, viewing B’s testimony
in the light most favorable to the state, he was testifying
about the fair market value of the workbench and the rack,
or about how much he would have been willing to sell the
items for if they had been for sale, not their replacement
value. Because the evidence was legally sufficient for the
question of the market value of the workbench and rack to
go to the jury, we reject defendant’s first two assignments of
error.
In his third assignment, defendant argues that the
trial court erred in failing to provide his requested special
jury instruction defining abandoned property. “We review
a trial court’s refusal to give a requested jury instruction
for legal error and view the record in the light most favor-
able to the requesting party.” State v. Paul, 289 Or App
408, 409, 410 P3d 378 (2017). Abandoned property “is that
of which the owner has relinquished all right, title, claim,
and possession, with the intention of not reclaiming it or
resuming its ownership, possession or enjoyment.” State v.
Erickson, 288 Or App 704, 710, 406 P3d 158 (2017) (internal
quotation marks omitted). Here, although the workbench
and rack had been left outside, a police officer testified that
defendant said he knew he was on private property when
he drove his pickup truck to the spot where he was loading
the items, and he also told the officer that he did not ask for
“permission from the owner to take the items,” and that he
“probably should have.” Viewing the record in the light most
favorable to defendant, the trial court did not err in deny-
ing the request for a special instruction defining abandoned
property.
In arguing otherwise, defendant relies primarily on
Erickson, 288 Or App at 710-11, but in Erickson the police
were unable to determine who owned the property at issue
and the state failed to meet its burden of showing it was
the “property of another.” Here, B was clearly the owner of
the property, and even though he left it outside the machine
shop, he testified he did not intend to get rid of it. The police
officer’s testimony established that defendant understood
104 State v. Phillips
the property had an owner. That evidence supported the
trial court’s decision to provide an instruction on the defense
of an honest claim of right, ORS 164.035(1),1 but it did not
require a special instruction defining abandoned property.
Defendant’s fourth, fifth, and sixth assignments of
error focus on the trial court’s use of the phrase “knowingly
appropriated” in the jury instructions on theft. As relevant
here, the trial court instructed the jury as follows:
“Oregon law provides that a person commits the crime
of Theft in the First Degree when, with intent to appropri-
ate property to himself, the person takes or appropriates
such property from an owner thereof and the total value of
the property is $1,000 or more.
“In this case, to establish the crime of Theft in the First
Degree the State must prove, beyond a reasonable doubt,
the following elements. (1) The act occurred on or about
May 1st, 2021. (2) [Defendant] with the intent to appro-
priate property to himself, knowingly appropriated a steel
workbench and a heavy duty steel storage rack from [the
machine shop] and its owner, [B]. * * * (3) [T]he total value
of the property was $1,000 or more. And (4) [defendant] was
criminally negligent with respect to his awareness that the
value of the property was $1,000 or more.
“A theft occurs when a person takes or withholds prop-
erty from the owner of the property with the intent to
appropriate the property for that person’s benefit or for the
benefit of some other person.
“A person appropriates property of another to them-
selves if they exercise control over property of another per-
manently or for so extended a period of [time] under such
circumstances as to acquire the major portion of the eco-
nomic value or benefit of such property, or they dispose of
the property of another for their benefit.
“A person acts intentionally or with intent when that
person acts with a conscious objective to cause a particu-
lar result. When used in the phrase with intent to appro-
priate property with intent means that a person acted
1
It is a defense that a defendant acted under “an honest claim of right” if the
defendant “was unaware that the property was that of another,” or the defendant
“reasonably believed that the defendant was entitled to the property involved or
had a right to acquire or dispose of it as the defendant did.” ORS 164.035(1).
Nonprecedential Memo Op: 342 Or App 100 (2025) 105
with a conscious objective to appropriate their property to
themselves.
“A person acts knowingly or with knowledge if that per-
son acts with an awareness that his or her conduct is of
a particular nature. When used in the phrase knowingly
appropriated knowingly means that the person acted with an
awareness that their conduct constituted Theft. Knowledge
is also established if a person acts intentionally.”
(Emphasis added.) The court provided a similar instruction
for the lesser-included offense:
“The charged crime of Theft in the First Degree has a
lesser included offense of the crime of Theft in the Second
Degree. To establish the lesser included offense of Theft in
the Second Degree the State must prove, beyond a reason-
able doubt, each of the following four elements.
“(1) The act occurred on or about May 1st, 2021. (2)
[Defendant], with the intent to appropriate property to
himself, knowingly appropriated a steel workbench and a
heavy duty steel storage rack from [the machine shop] and
its owner, [B]. (3) The total value of the property was $100
or more. And (4) [defendant] was criminally negligent with
respect to his awareness that the value of the property was
$100 or more.”
(Emphasis added.) Assuming without deciding that the par-
ties proposed jury instructions, which did not use the phrase
“knowingly appropriated,” were sufficient to preserve the
arguments made on appeal, we conclude that the error if
any was harmless.
An error is harmless if “there was little likelihood
that the error affected the jury’s verdict.” State v. Davis, 336
Or 19, 32, 77 P3d 1111 (2003). In this case, the state was
required to prove that defendant intended to appropriate
the property to himself. ORS 164.015. Here, if the jury had
only been instructed that it had to find that defendant know-
ingly appropriated the property, then the error might have
been harmful because it could have led the jury to convict
defendant based on a lesser mental state than required. But
that is not what occurred. Instead, the jury was instructed a
number of times that it had to find both that defendant had
“the intent to appropriate property to himself,” and that he
106 State v. Phillips
“knowingly appropriated” the property. Given that the jury
had to make both findings due to the instructions that it
received, then it could not have convicted defendant based
on a lesser mental state than required.
Some of the other instructions that were given
reinforce that conclusion. As noted above, the jury was
instructed that “Knowledge is also established if a person
acts intentionally.” The jury was instructed that “knowingly
appropriated” means that the person acted with an aware-
ness that their conduct constituted theft, and that a theft
occurs when a person takes property “with the intent to
appropriate the property for that person’s benefit.” Because
the jury was instructed several times that it had to find
defendant intended to appropriate the property, the error,
if any, in using the phrase “knowingly appropriated” was
harmless. We therefore reject defendant’s fourth, fifth and
sixth assignments of error.
In his seventh assignment, defendant focuses on a
comment during rebuttal closing argument. The prosecutor
argued as follows:
“We talk about the reasonableness and I just have to ask
would a reasonable person drive onto private property,
which the defendant already admitted to know that yes,
this is private property, and take from said property?”
Defendant objected to the argument and the trial court
overruled the objection.
We “review a trial court’s decision to overrule an
objection to closing arguments for abuse of discretion.” State
v. Totland, 296 Or App 527, 531, 438 P3d 399, rev den, 365
Or 502 (2019). Defendant argues that the prosecutor mis-
applied the standard for criminal negligence and relied on
impermissible character-based reasoning. Considered in
context, we conclude that the prosecutor’s comments were
not improper. As noted, defendant raised, and the trial
court instructed, the jury as to the defense of “honest claim
of right.” Consequently, the state had the burden to prove
that defendant did not have an honest claim of right to the
property, so it was permissible for the prosecutor to argue
that, given defendant’s knowledge that he was on private
Nonprecedential Memo Op: 342 Or App 100 (2025) 107
property, it was not reasonable for defendant to take the
workbench and rack. That argument was based on the evi-
dence, and, contrary to defendant’s argument on appeal, it
had nothing to do with his character. See State v. Sperou,
365 Or 121, 134-35, 442 P3d 581 (2019) (prosecutors may
comment on the evidence and urge the jury to draw legiti-
mate inferences from the evidence). The trial could did not
abuse its discretion in overruling the objection. Because we
reject each of defendant’s assignments of error, we affirm
the judgment of conviction.
Affirmed.