MEMO ONE ASSIGNMENT
State of Garner v. Jamie Whitten
You have just received the following e-mail from the supervising attorney in your
office.
To:
From:
Date:
Subject:
lawstudent-1@guzmanfirm.com
zboss@guzmanfirm.com
August 23, 2021
State v. Whitten—larceny of lost property criminal charge
Dear Student:
Welcome to your internship! I am looking forward to working with you this
semester.
We have a new matter we would like you to begin working on. One of our longtime
clients, Jamie Whitten, has been charged with one count of felony larceny of lost
property for finding and attempting to sell a diamond ring valued at $3,500. Below
are the details surrounding her criminal charge.
In early July, Jamie went for her weekly visit to her therapist in Garner City,
where Jamie lives. Jamie’s therapist has an office located in a building that houses
a total of six other businesses, including an accountant, a financial advisor, a small
yoga studio, a photography studio, a telemarketing firm, and the publisher of a
small monthly magazine. When entering and exiting the building, patrons walk
down a common hallway. There is also a set of men’s and women’s public restrooms
near the front doors of the office building. On the day in question, Jamie went into
the women’s restroom on her way out of the building after meeting with her
therapist. Jamie has stated that there was no one else inside the restroom when she
went in, though she did say that two women dressed in yoga clothes came out of the
bathroom and left the building as she was walking down the hall after leaving her
therapist’s office. Inside the restroom, Jamie found a large diamond ring sitting on
the edge of the one of the sinks. She collected the ring and left the building. Later
that day, Jamie went onto a Facebook Group page for Garner City called “Garner
City Happenings,” where members often post questions about things going on in
town and share updates and news related to the city. Jamie made a post in the
Garner City Happenings group page that stated, “Hey ya’ll, I was at the Willows
Office Park on 22nd today and found a ring in the bathroom. If it’s yours and you
can describe it to me, I’ll meet up with you to give it back.” Although Jamie’s post
received a couple of dozen “likes” and a few comments praising her for doing the
right thing, no one contacted Jamie to claim the ring.
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Four days later, Jamie took the ring to a local pawn shop and sold it. The pawn
shop owner, as required by Garner law, turned over a list of merchandise received
to the Garner City police, who noticed the description of the ring and went to
investigate. The police compared the ring, which has a very distinct design, to
pictures provided from the ring’s owner when she reported her ring as lost or stolen
a few days prior. The police then tracked down Jamie and arrested her. Jamie was
later charged with one felony count of larceny of lost property.
Please prepare a memo analyzing whether we could successfully defend Jamie in
this matter. For purposes of this memo, you may assume that Jamie’s description of
the facts is accurate, though we will certainly investigate further to corroborate her
story. The Discussion and Conclusion sections of your memo should be between
1,200 and 1,500 words, including headings, subheadings, and citations. As always,
the memo should comply with the formatting instructions listed in your syllabus.
Thanks!
ZB
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Use the following citation formats:
Cases:
State v. Phillips, 261 P.4th 822, 830 (Gar. Crim. App. 2012).
(Full cite: Use the first time you cite to the case. This example include cites to
material from page 830 of the Phillips case.)
Id.
(Short cite: Use if the immediately preceding pinpoint cite was to the same
page of the same case.)
Id. at 827.
(Short cite: Use if the immediately preceding pinpoint cite was to a different
page of the same case.)
Phillips, 261 P.4th at 829..
(Long-short cite: Use if the immediately preceding cite was to the statute or a
different case.)
Statutes:
Gar. Stat. tit. 97, § 1501(B) (2018).
(Full cite: Use the first time you cite to the statute.)
Gar. Stat. tit. 97, § 1501(A)(1). or § 1501(A)(1).
(Long-short cite: Use if you have previously used a full cite to the statute, but
the immediately preceding cite was to a case. You may use the second option
if every statute you are citing in your document comes from the same title.)
Id.
(Short cite: Use if the immediately preceding cite was to the same subsection
of the statute.)
Id. § 1501(A)(1)–(2), (4).
(Short cite: Use if the immediately preceding cite was to a different
subsection of the statute.)
NOTE: these are example citations and not the correct cites for your
assignment.
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Garner Statutes
Title 21, Chapter 68
Section 1702
Crimes and Punishments: Larceny; Lost Property
One who finds lost property under circumstances that gives him knowledge or
means of inquiry as to the true owner, and who appropriates such property to his
own use or to the use of another person who is not entitled thereto, without having
first made such effort to find the owner and restore the property to him as the
circumstances render reasonable and just, is guilty of larceny punishable as follows:
1.
If the value of the property is less than $1,000, the person shall be guilty of a
misdemeanor punishable by imprisonment in the county jail not to exceed
one year, or by a fine not to exceed $500, or by both such imprisonment and
fine;
2.
If the value of the property is $1,000 or more but less than $2,500, the person
shall be guilty of a felony punishable by imprisonment in the custody of the
Department of Corrections not to exceed two years, or in the county jail not to
exceed one year, or by a fine not to exceed $1,000, or by both such
imprisonment and fine;
3.
If the value of the property is $2,500 or more but less than $15,000, the
person shall be guilty of a felony punishable by imprisonment in the custody
of the Department of Corrections not to exceed five years, or in the county jail
not to exceed one year, or by a fine not to exceed $1,000, or by both such
imprisonment and fine; and
4.
If the value of the property is $15,000 or more, the person shall be guilty of a
felony punishable by imprisonment in the custody of the Department of
Corrections not to exceed eight years, or by a fine not to exceed $1,000, or by
both such imprisonment and fine.
Effective November 1, 1998.
Amended November 1, 2010.
Date of code edition: 2020.
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231 P.4th 398
Garner Court of Criminal Appeals
Dominic MARTIN, Appellant,
v.
STATE of Garner, Appellee.
No. CR-13-249
September 3, 2013
Defendant Martin was convicted in Beaverton County District Court of one count of
larceny of lost property. Martin appealed. The Garner Court of Criminal Appeals,
Fields, J., held that there was sufficient evidence to support the Defendant’s
conviction and affirmed the conviction.
Headnotes:
[1] KeyCite Citing References for this Headnote
237 Crimes and Punishments
237I Larceny
237k10 Lost or Mislaid Property
237k30 Knowledge or Means of Inquiry as to the Owner
The defendant, at the time he finds the lost or mislaid property, must have either
actual knowledge of the property’s owner or the ability to determine the owner
through reasonable diligence.
[2] KeyCite Citing References for this Headnote
237 Crimes and Punishments
237I Larceny
237k10 Lost or Mislaid Property
237k30 Knowledge or Means of Inquiry as to the Owner
The surrounding context of when, where, and how the lost property is found is
critical in establishing this element of the crime. The fact finder can rely on
reasonable inferences that the defendant should have been able to make based on
the circumstances of finding the lost property.
[3] KeyCite Citing References for this Headnote
237 Crimes and Punishments
237I Larceny
237k10 Lost or Mislaid Property
237k40 Restoring the Property to the Owner
The defendant must take reasonable steps to return the property to the owner.
5
*399 Opinion by FIELDS, Presiding Judge:
Defendant Dominic Martin appeals his conviction of one count of larceny of lost
property, arguing that the evidence presented at trial was insufficient to support
the jury’s finding. The evidence that was offered at Martin’s trial, which consists of
both security camera footage and testimony, is summarized below.
On May 21, 2013, Eric Stoltz, a member of Iron Den Total Fitness, a local Garner
City gym, reported to the front desk of the gym that $700 in cash had been stolen
out of a small canvas pouch that he had accidentally left behind on his previous
visit. The manager of the gym reviewed security camera footage, which showed the
following incident. Earlier that day, Stoltz had come to the gym and left a few
personal items in an area containing open “cube” shelving that provides gym
members with a place to leave their personal belongings if they don’t want to use a
locker. This area of shelving is between the main entryway of the gym and the
entrance to the open gym floor and is visible by the front desk. Later, when Stoltz
went to retrieve his belongings, the security camerage footage showed that he
dropped the pouch on the floor as he was pulling items out of the shelf and then
inadvertently kicked the pouch underneath the shelving unit. About five minutes
later, another man, later identified by the manager as Dominic Martin, came over
to the shelving unit and, while bending down to put items on one of the lower
shelves, noticed the pouch under the shelf and picked it up. The footage showed
Martin talking to another, nearby gym member briefly while gesturing to the pouch,
which had the initials “E.R.S.” written on the front. Martin then opened the pouch,
looked through the contents, and then removed something unidentifiable before
placing the pouch onto one of the empty shelves. Stoltz later came back to the gym,
found the pouch on the shelf, and discovered that the cash had been taken.
The gym manager reported the stolen money to the police, who reviewed the
security camerage footage and subsequently obtained an arrest warrant for Martin.
The next day, Martin was arrested and charged with larceny of lost property. In
July 2013, the case proceeded to a bench trial. The trial court found Martin guilty of
a misdemeanor and sentenced him to six months in the county jail and a $500 fine.
Martin appealed to this Court, arguing that the evidence presented at trial was
insufficient to support his conviction.
When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence
nor judge the credibility of witnesses. Willis v. State, 27 P.3d 1065, 1066 (Gar. Crim.
App. 2002). We will only consider the evidence supporting the judgment and any
reasonable inferences that can be drawn from the evidence. Id. A conviction will be
affirmed if there is substantial evidence of probative value to support each element
of the offense such that a reasonable trier of fact could have found the defendant
guilty beyond a reasonable doubt.
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*400 Under the Garner larceny statute for lost property,
One who finds lost property under circumstances that gives him knowledge
or means of inquiry as to the true owner, and who appropriates such
property to his own use or to the use of another person who is not entitled
thereto, without having first made such effort to find the owner and restore
the property to him as the circumstances render reasonable and just, is
guilty of larceny . . . .
Gar. Stat. tit. 21, § 1702 (2010). Martin argues that the State did not have sufficient
evidence of each element required to prove larceny of lost property beyond a
reasonable doubt. For the reasons described below, we disagree.
[1] First, Martin argues that the State’s evidence was insufficient under § 1702 to
support a finding that he found the property “under circumstances that [gave] him
knowledge or means of inquiry as to the true owner” of the money. To prove this
element of the crime, the State must provide evidence that the defendant, at the
time he finds the lost or mislaid property, has either actual knowledge of the
property’s owner or the ability to determine the owner through reasonable diligence.
It is not required that the defendant exhaust every means available to determine
the owner of the property. In this case, Martin claims that he did not know who the
owner of the mislaid money was, nor could he have determined the owner through
reasonable diligence. He argues that the money was in an unmarked pouch that
contained no identifying information, such as a driver’s license or credit card, that
could have allowed him to determine the owner. He further argues that the pouch
had been left in a public area where many people come and go in a short amount of
time, making it nearly impossible to pinpoint who had left the pouch.
[2] In reaching our conclusion that the State’s evidence was sufficient to prove
beyond a reasonable doubt that Martin found the property under circumstances
that gave him the knowledge or means of inquiry as to the true owner of the lost
money, we note that the surrounding context of when, where, and how the lost
property is found is critical in establishing this element of the crime. *401 The fact
finder can rely on reasonable inferences that the defendant should have been able to
make based on the circumstances of finding the lost property. Here, Martin found
the money in a pouch that had the initials “E.R.S.” written on the front. Though this
information would likely not be helpful in determining the pouch’s owner had the
pouch been found lying in the middle of a park or on a busy sidewalk, that is not the
case here. Martin found the pouch inside of a gym that only members can attend.
Martin should have been able to reasonably infer that the pouch belonged to
someone who was a member of the gym and who had the initials “E.R.S.” Martin
found the pouch in an area near the front desk, where every member of the gym
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signs in upon entry. In the exercise of reasonable diligence, Martin could have
asked the front desk for help identifying the owner of the pouch or at least asked if
anyone had reported the pouch as missing. Because Martin had the ability to
determine the owner through reasonable diligence, we hold that the evidence
sufficiently established that he found the property under circumstances giving him
the knowledge or means of inquiry as to the true owner of the money.
[3] *402 Second, Martin argues that the State’s evidence was insufficient to support
a finding that he did not make “such effort to find the owner and restore the
property to him as the circumstances render reasonable and just” under § 1702. For
this element, the State can satisfy its burden by showing that the defendant failed
to take reasonable steps to return the property to its owner. As the statute states,
this element must be examined based on the surrounding circumstances to
determine what steps would be “reasonable” in attempting to return the property to
the owner. Id. In this case, Martin argues that he acted reasonably in trying to
return the pouch to its owner by asking another gym patron if the pouch was hers
or if she knew who had dropped it, as shown in the security camera footage when he
speaks to another gym member while gesturing to the pouch. Again, we disagree
with Martin’s argument. Based on the circumstances of finding the pouch inside of
the gym and near the front desk, it would have been more reasonable for Martin to
take the pouch to the front desk to either get help identifying the owner or to simply
turn the pouch in to be returned in the event that the owner came looking for it. For
these reasons, we hold that the State’s evidence was sufficient to establish beyond a
reasonable doubt that Martin did not make an effort to find the owner of the money
and restore the property to him as the circumstances rendered just and reasonable.
Section 1702 of the Garner criminal statutes is meant to incentivize people to
return property to its rightful owner when it is apparent to whom the property
belongs, even if it is obvious that the property is lost. Though a person who finds
valuable lost property may be tempted to adopt a “finders, keepers” attitude, society
benefits when that person instead acts as a good citizen and helps return the
property to its rightful owner. Many of us can relate to the feeling of losing
something valuable or important, and we all would hope that our lost property
would be found by someone who would seek us out to return it.
We therefore AFFIRM the jury’s finding convicting Martin of larceny of lost
property.
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783 P.4th 213
Garner Court of Criminal Appeals
Alexander PETERSON, Petitioner,
v.
State of GARNER, Respondent.
No. CR-19-412
April 23, 2019
Alex Peterson was convicted of one count of felony larceny of lost property following
a bench trial. On appeal, the Garner Court of Criminal Appeals reversed, holding
that the evidence at Peterson’s trial was insufficient to support his conviction.
Headnotes:
[1] KeyCite Citing References for this Headnote
237 Crimes and Punishments
237I Larceny
237k10 Lost or Mislaid Property
237k30 Knowledge or Means of Inquiry as to the Owner
The defendant, at the time he finds the lost or mislaid property, must have either
actual knowledge of the property’s owner or the ability to determine the owner
through reasonable diligence.
[2] KeyCite Citing References for this Headnote
237 Crimes and Punishments
237I Larceny
237k10 Lost or Mislaid Property
237k30 Knowledge or Means of Inquiry as to the Owner
The surrounding context of when, where, and how the lost property is found is
critical in establishing this element of the crime. The fact finder can rely on
reasonable inferences that the defendant should have been able to make based on
the circumstances of finding the lost property.
[3] KeyCite Citing References for this Headnote
237 Crimes and Punishments
237I Larceny
237k10 Lost or Mislaid Property
237k40 Restoring the Property to the Owner
The defendant must take reasonable steps to return the property to the owner.
9
*214 Opinion by BURNETT, Chief Judge:
In January 2019, Alex Peterson was found guilty of a felony charge of larceny of lost
property after a bench trial. The trial judge sentenced him to one year in the county
jail and a $1000 fine. Peterson appealed to this Court, as the court of last resort for
criminal cases in the state of Garner, claiming that the evidence at his bench trial
was insufficient to support his conviction. We reverse.
In September 2018, an outdoor music festival was held in Linden Hills Park in
downtown Garner City. The festival lasted for two days and included bands,
musicians, and other acts showcased for eight hours each day on three different
stages. The festival also included numerous food trucks, a small art show with a
range of vendors, and a beer garden. The approximate attendance for the festival
was over 8,000 people. One of the attendees was Lydia Benton. While Benton was at
the festival, she lost her purse—specifically, a Louis Vuitton Vertical Trunk
Pochette valued at approximately $2,200. Approximately six weeks after the
festival, Benton found what she believed to be her purse for sale on Poshmark,
listed by Alex Peterson. Benton contacted the Garner City police, who conducted a
short investigation into the circumstances surrounding the lost purse (including
adequately identifying the purse as belonging to Benton) and subsequently charged
Alex Peterson with one felony count of larceny of lost property.
At his bench trial, Peterson testified in his defense as to the circumstances by which
he came to have possession of the purse. According to Peterson’s testimony, he owns
and operates a popular donut food truck called Glazed & Confused, which was part
of the food truck lineup at the music festival. Peterson said that he set out four
picnic benches in the grassy area next to his food truck for patrons to use. At one
point during the festival, Peterson walked over to the picnic benches to wipe them
down and pick up trash. *215 Underneath one of the benches, he found a Louis
Vuitton purse—the same Vertical Trunk Pochette style that Benton had lost.
Peterson explained that he collected the purse and took it into the food truck to hold
it for the owner. At the end of the festival, when no one had come to claim the purse,
he took it home. Peterson testified that, a few days later, he contacted that
organizers of the festival to ask if anyone had been looking for the missing purse
and was told that no one had. In addition, Peterson posted on the Facebook and
Instagram pages for Glazed & Confused, stating that he had collected a few lost
items at the Garner City Music Festival and that anyone who had lost something
should contact him for more information. Over a month later, having heard nothing
from anyone about the lost purse, Peterson decided to sell it on Poshmark after
learning of its value.
[1] [2] We first review whether the State had sufficient evidence to prove beyond a
reasonable doubt the first element of the crime: that the property was found “under
10
circumstances that [gave the defendant] knowledge or means of inquiry as to the
true owner” of the purse. Gar. Stat. tit. 21, § 1702 (2010). To prove this element,
“the State must provide evidence that the defendant, at the time he finds the lost or
mislaid property, has either actual knowledge of the property’s owner or the ability
to determine the owner through reasonable diligence.” Martin v. State, 231 P.4th
398, 400 (Gar. Crim. App. 2013). In Martin, the Court of Appeals further noted the
importance of considering the “surrounding context of when, where, and how the
lost property is found” and that the fact finder can take into account “reasonable
inferences that the defendant should have been able to make based on the
circumstances of finding the lost property.” Id. at 400–01. Here, none of the
evidence offered by the State proves, or even creates an inference, that Peterson had
any idea who the purse belonged to, nor that he had any reasonable way of tracking
down the owner of the purse. Peterson found the purse during a music festival that
had thousands of attendees in a span of two days. The purse was left under a picnic
table that was unoccupied at the time Peterson went to clean it. The purse itself
contained no identifying information—no name, phone number, or any other contact
information was found on or in the purse. In fact, the purse’s contents, according to
Peterson’s testimony, were a tube of lip gloss, hand sanitizer, a tin of Altoids, and
$17 in cash. None of these facts support a finding beyond a reasonable doubt that
Peterson had the knowledge or means of inquiry as to the true owner of the purse.
[3] *216 Additionally, we find that the State did not have sufficient evidence to
prove beyond a reasonable doubt that the defendant had not “first made such effort
to find the owner and restore the property to him as the circumstances render
reasonable and just.” § 1702. This element of the crime requires the defendant “to
take reasonable steps to return the property to the owner.” Martin, 231 P.4th at
402. Here again, we should look at the surrounding circumstances to determine
what steps to return the property would be considered “reasonable and just.” §
1702. In a circumstance such as the one in this case, where the defendant has
virtually no way to determine the owner of the property, there are very few, if any,
steps that he must take to return the property. Here, Peterson took two distinct
steps to return the purse to its owner, both of which we would consider reasonable
considering the circumstances: (1) he called the organizers of the festival to ask if
anyone had inquired about the missing purse, and (2) he posted on his food truck’s
Facebook and Instagram pages about his finding missing items at the festival.
Those were realistically the only ways he could try to track down the owner of an
anonymous item, such as the purse. Here again, these facts do not support a finding
beyond a reasonable doubt that Peterson did not make a “reasonable and just” effort
to restore the property to Benton.
While we recognize the important policy objectives behind section 1702, sometimes
property is simply just lost. We do not think it serves society in a meaningful way to
begin criminalizing every act of a person finding something valuable that has been
11
misplaced. The evidence in this case falls short of what is needed to support
Peterson’s conviction.
REVERSED.
CUDMORE, P.J., WILBER, and PETERS, JJ., concur.
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