Chapter 165

LAW REVIEW CITATIONS: 51 OLR 427-637 (1972)

165.002

NOTES OF DECISIONS

Letter to bank requesting withdrawal of amount from savings account constituted “written instrument” as defined in this section. State v. Jackson, 35 Or App 741, 582 P2d 837 (1978), Sup Ct review denied

Where defendant altered endorsement on check to change it from restrictive endorsement to special endorsement, check was “falsely altered” within meaning of this section. State v. Hamilton, 291 Or 283, 634 P2d 208 (1981)

Where defendant signed his own name to stolen traveler’s check, he did not falsely make or complete written instrument purporting to be authentic creation of ostensible maker or authorized by ostensible maker and did not commit forgery. State v. Blake, 93 Or App 128, 760 P2d 1369 (1988)

Signing false name on license containing false information constitutes false completion of written instrument. State v. Ojeda-Inda, 179 Or App 680, 42 P3d 329 (2002)

For purpose of determining whether money order is falsely made written instrument, “ostensible maker” is institution identified as issuer and drawer of money order, not person signing as purchaser. State v. Ford, 188 Or App 424, 72 P3d 93 (2003)

165.007

NOTES OF DECISIONS

Evidence supported inference that defendant changed name with “intent to injure or defraud” where name change duplicated that used by another in connection with property interests subject to pending suit. State v. Belva Ray, 36 Or App 367, 584 P2d 362 (1978), Sup Ct review denied

Where trial judge found that defendant was “practically certain” that currency defendant passed was counterfeit, court applied correct legal test for element of knowledge required for crime of forgery. State v. Weissenfluh, 52 Or App 61, 627 P2d 517 (1981), Sup Ct review denied

Evidence was sufficient for trial court to conclude that defendant was aware $100 bill was counterfeit and that defendant had generalized intent to defraud. State v. Weissenfluh, 52 Or App 61, 627 P2d 517 (1981), Sup Ct review denied

Defendant charged with two counts of forgery under this section for (1) falsely making and completing check and (2) uttering same check, should have received only one conviction and sentence. State v. Kizer, 308 Or 238, 779 P2d 604 (1989)

ATTY. GEN. OPINIONS: Unauthorized manufacture, sale or use of commercial motor vehicle safety inspection decals as forgery, (1981) Vol 42, p 87

165.013

NOTES OF DECISIONS

Under former similar statute (ORS 165.115)

Where publishing of two checks was single transaction, imposition of two separate sentences on conviction of two counts of uttering was improper. State v. Welch, 264 Or 388, 505 P2d 910 (1973)

In general

The existence of a statute prohibiting unlawful use of a credit card, ORS 165.055, did not preclude the state from prosecuting the defendant under this section for uttering a forged credit sales slip. State v. Franke, 13 Or App 278, 508 P2d 454 (1973), Sup Ct review denied

Because the delivery of two forged deeds simultaneously to the clerk for recording was a single transaction, the imposition of more than one sentence on conviction was improper. State v. Jackson, 23 Or App 246, 541 P2d 1072 (1975)

An unendorsed bank check can be a “commercial instrument” within the meaning of this section. State v. Riley, 24 Or App 665, 546 P2d 1097 (1976)

Where defendant was convicted of issuing false checks on two occasions four days apart, imposition of separate sentence for each conviction was not improper. State v. Nettles, 31 Or App 579, 571 P2d 155 (1977)

Letter, making reference to enclosed savings passbook, which requested bank to withdraw amount from savings account, fell within class of instruments whose uttering constituted forgery in first degree under this section. State v. Jackson, 35 Or App 741, 582 P2d 837 (1978), Sup Ct review denied

Where defendant, bookkeeper of endorser, altered endorsement on check to change it from restrictive endorsement to special endorsement and signed her name as endorser, instrument falsely appeared or purported to be authentic creation of its ostensible maker or authorized by the maker and conviction of forgery under this section was proper. State v. Hamilton, 291 Or 283, 634 P2d 208 (1981)

Even though not convicted, finding that accused committed crimes of forgery, unsworn falsification and bigamy was sufficient to disbar attorney. In re Kirkman, 313 Or 181, 830 P2d 206 (1992)

“Other valuable instruments” means items having inherent pecuniary value and of type issued in large or discrete series. State v. Tarrence, 161 Or App 583, 985 P2d 225 (1999)

Government checks for less than $750 are treated identically to private checks, not as “valuable instruments” issued by government. State v. Tarrence, 161 Or App 583, 985 P2d 225 (1999)

“Other document” that does or may evidence, create, transfer, alter, terminate or otherwise affect legal right, interest, obligation or status refers to document other than commercial instrument. State v. Mayorga, 186 Or App 175, 62 P3d 818 (2003)

Crime of criminal possession of a forged instrument merges with crime of forgery in the first degree. State v. Blake, 348 Or 95, 228 P3d 560 (2010)

ATTY. GEN. OPINIONS

In general

Unauthorized manufacture, sale or use of commercial motor vehicle safety inspection decals as forgery, (1981) Vol 42, p 87

165.017

NOTES OF DECISIONS

Signing false name on license containing false information constitutes false completion of written instrument. State v. Ojeda-Inda, 179 Or App 680, 42 P3d 329 (2002)

165.022

NOTES OF DECISIONS

Crime of criminal possession of a forged instrument merges with crime of forgery in the first degree when crimes arise from same conduct or criminal episode. State v. Blake, 348 Or 95, 228 P3d 560 (2010)

To be “valuable instruments,” items must have readily ascertainable face value equivalent to specified sum of money and be part of larger issue of instruments. State v. Gonzalez-Aguillar, 287 Or App 410, 403 P3d 539 (2017)

165.042

NOTES OF DECISIONS

This section does not reach protected speech and, therefore, is not overbroad and does not violate Article I, section 8 of the Oregon Constitution. State v. Romig, 73 Or App 780, 700 P2d 293 (1985), Sup Ct review denied

165.065

NOTES OF DECISIONS

Jury instruction requiring inference in prosecution for negotiating bad check that if defendant did not make good on check within ten days after receiving notice of refusal that he had knowledge at time check was drawn that it would be dishonored was improper instruction permitting jury to make presumption as to element of crime and was reversible error. State v. Short, 88 Or App 567, 746 P2d 742 (1987)

Prima facie evidence of knowledge that check or order would not be honored is not element of crime that state must prove to establish that defendant negotiated bad check. State v. Kirkland, 241 Or App 40, 249 P3d 554 (2011)

LAW REVIEW CITATIONS: 51 OLR 533 (1972)

165.075

COMPLETED CITATIONS: State v. Sinniger, 6 Or App 145, 486 P2d 1303 (1971), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 430 (1972)

165.085

LAW REVIEW CITATIONS: 51 OLR 430 (1972)

165.095

NOTES OF DECISIONS

Defendant must be shown to have known that act was “contrary to legally established rules governing care of entrusted property” and posed substantial risk of loss or detriment to owner or beneficiary. State v. Hitz, 307 Or 183, 766 P2d 373 (1988)

165.100

NOTES OF DECISIONS

Whether statement qualifies as “financial statement” is independent of ultimate purpose for making statement. State v. Pierce, 153 Or App 569, 962 P2d 35 (1998), Sup Ct review denied

165.102

NOTES OF DECISIONS

There is no constitutional privilege fraudulently to misrepresent facts in order to obtain another’s property, signature to a written instrument or execution of a written instrument affecting pecuniary interest; this section is not overbroad and is constitutional under Article I, section 8 of the Oregon Constitution. State v. Romig, 73 Or App 780, 700 P2d 293 (1985), Sup Ct review denied

165.540

NOTES OF DECISIONS

Where officer stopped defendant for suspected use of intoxicants and tape recorded all conversation with defendant from time he approached car until shortly after arrest and tape showed officer informed defendant their conversation was being recorded two minutes after they began talking, error in admitting portion of tape recording which occurred before officer informed defendant of its existence was nonprejudicial. State v. Cooney, 36 Or App 217, 584 P2d 329 (1978)

Notwithstanding this section, employer who allegedly eavesdropped on employe’s telephone call was not necessarily aware that such activity was illegal, and thus employe could not seek discovery of employer’s consultations with attorneys with respect to such eavesdropping. State ex rel North Pacific Lumber v. Unis, 282 Or 457, 579 P2d 1291 (1978)

Proper sanction for failure to minimize interception of communications not covered by warrant is suppression of all intercepted communications. State v. Tucker, 62 Or App 512, 662 P2d 345 (1983), Sup Ct review denied

Where defendant called police dispatcher to seek assistance with disabled vehicle and telephone conversation was recorded, recorded message was admissible because it was “telecommunication” and dispatcher had consented to the recording. City of Lake Oswego v. Mylander, 84 Or App 15, 733 P2d 455 (1987)

This section provides independent basis for barring use of illegally obtained wiretap evidence for impeachment purposes. State v. Tucker, 90 Or App 506, 753 P2d 427 (1988)

This section is not overbroad or unconstitutionally vague. State v. Knobel, 97 Or App 559, 777 P2d 985 (1989), Sup Ct review denied

Since police broadcasts fall within exception to this section and public has free and ready access, no crime was committed when defendant tape recorded them on scanner. State v. Bichsel, 101 Or App 257, 790 P2d 1142 (1990)

This section requires person recording own conversation with others to give unequivocal warning to that effect. State v. Bichsel, 101 Or App 257, 790 P2d 1142 (1990)

Police officer is authorized to record conversation without ex parte order if officer has probable cause to believe conversation will involve unlawful drug transaction. State v. Evans, 113 Or App 210, 832 P2d 460 (1992); State v. Casteel, 122 Or App 218, 857 P2d 204 (1993)

Admissibility of body wire evidence is governed by ORS 41.910. State v. Casteel, 122 Or App 218, 857 P2d 204 (1993)

Warning that conversation was being “monitored” by camera and audio means sufficiently conveyed information that conversation was being recorded. State v. Haase, 134 Or App 416, 895 P2d 813 (1995), Sup Ct review denied

If required information is given, there is no additional requirement that defendant understand warning or consent to recording. State v. Haase, 134 Or App 416, 895 P2d 813 (1995), Sup Ct review denied

Omnidirectional signal broadcast by cordless telephone is not radio broadcast transmitted for use by general public. State v. Carston, 323 Or 75, 913 P2d 709 (1996)

For conversation to be “between” officer or person under officer’s control and another person, officer or person under officer’s control must be engaged in reciprocal conversation with other person. State v. Fleetwood, 331 Or 511, 16 P3d 503 (2000)

Existence of probable cause or exigent circumstances does not make conversations obtained without court order admissible. State v. Fleetwood, 331 Or 511, 16 P3d 503 (2000)

Exception allowing person to record telephone conversation of another in person’s own home applies both to recording of conversation and use of recorded conversation. Checkley v. Boyd, 198 Or App 110, 107 P3d 651 (2005), Sup Ct review denied

Where one participant in conversation specifically informs other participants that participant is obtaining conversation, other participants do not violate statute if they obtain conversation without providing such information. State v. Neff, 246 Or App 186, 265 P3d 62 (2011)

Evidence that marketplace for property exists but is unreliable is sufficient for trier of fact to conclude that market value of stolen items cannot reasonably be ascertained and that replacement value of stolen items may be used. State v. Mays, 294 Or App 229, 429 P3d 1061 (2018), Sup Ct review denied

Homeowner’s exception applies to subscribers to telecommunications and radio services (and their family members) who, in their homes, engage in conduct otherwise prohibited by subsection (1)(c) of this section, regardless of whether subscribed-to service is utilized to obtain conversation. State v. Evensen, 298 Or App 294, 447 P3d 23 (2019), Sup Ct review denied

Where mother surreptitiously recorded daughter’s conversations with father on landline and cellphone, recordings were admissible in custody determination under residence exception because mother was subscriber and recording occurred in mother’s home. Garland and Garland, 306 Or App 516, 475 P3d 105 (2020)

ATTY. GEN. OPINIONS: Inapplicability to public meetings of public governing bodies, (1976) Vol 38, p 50

165.545

NOTES OF DECISIONS

Where defendant was required to submit to telephonic voice transmission and provide voice exemplar, suppression of exemplar and other taped conversations on basis of this section was improper as it does not apply to that kind of recording. State v. Maffia, 42 Or App 147, 600 P2d 446 (1979), Sup Ct review denied

165.572

NOTES OF DECISIONS

Defendant, who pulled cellular telephone charger out of cellular telephone that victim was using to make 9-1-1 report, did not hinder victim’s ability to make report because victim was able to continue making report without discernible interruption or delay as result of defendant’s action. State v. Smith, 259 Or App 36, 312 P3d 552 (2013)

As used in this section, “report” includes ongoing conversation with 9-1-1 dispatcher about continuing incident, even if caller has provided sufficient information for emergency services response. State v. Leers, 316 Or App 762, 502 P3d 775 (2022)

165.692

NOTES OF DECISIONS

Offense occurs at time claim is made without regard to date of services, existence of payment or date of payment. State v. Young, 161 Or App 507, 985 P2d 835 (1999), Sup Ct review denied

165.800

NOTES OF DECISIONS

Person does not convert personal identification to person’s own use by giving police officer false information concerning identity. State v. Fields, 191 Or App 127, 79 P3d 915 (2003)

Intent to “deceive” denotes attempt to obtain benefit to which deceiver is not lawfully entitled and therefore does not include substantial amount of protected speech. State v. Porter, 198 Or App 274, 108 P3d 107 (2005)

Intent to defraud includes intent to cause injury to another person’s legal rights or interests. State v. Alvarez-Amador, 235 Or App 402, 232 P3d 989 (2010)

Victim of crime is any person whose personal identification could be used by another person for deceptive or fraudulent ends, and it is immaterial whether that risk is realized or whether economic or reputational injury actually occurs. State v. Mullen, 245 Or App 671, 263 P3d 1146 (2011), Sup Ct review denied

Where defendant’s name was added to victim’s bank account because defendant was named as victim’s power of attorney, and defendant withdrew all funds from account, defendant did not commit crime of identity theft because defendant accessed account using defendant’s own access credentials. State v. Zibulsky, 266 Or App 633, 338 P3d 750 (2014)

Where defendant gave police officer false name and birthdate and signed fingerprint card and property receipt with same false name, defendant had “intent to deceive” officer as used in this section. State v. Medina, 357 Or 254, 355 P3d 108 (2015)

Where defendant gave police officer false name and birthdate and signed fingerprint card and property receipt with same false name, defendant did not “utter . . . personal identification of another person,” which requires defendant to have issued, delivered, transferred, published, circulated, disseminated or tendered documents. State v. Medina, 357 Or 254, 355 P3d 108 (2015)

Where defendant gave police officer false name and birthdate and signed fingerprint card and property receipt with same false name, defendant did not convert to defendant’s own use another’s personal identification because defendant did not take, appropriate or divest other person of personal identification for defendant’s own use. State v. Medina, 357 Or 254, 355 P3d 108 (2015)

Where defendant’s cellmate willingly allowed defendant to take over telephone call that cellmate made with cellmate’s own personal identification number, defendant did not appropriate cellmate’s personal identification number without consent or permission; thus, defendant did not convert cellmate’s personal identification number to defendant’s own use and did not commit crime of identity theft. State v. Ritter, 280 Or App 281, 380 P3d 1160 (2016)

A person “transfers” personal identification of another by selling or giving possession or control of that personal identification to third person for fraudulent or deceptive purposes. State v. Bowen, 280 Or App 514, 380 P3d 1054 (2016)

Where defendant gave possession or control of victim’s credit card information to retailer for defendant’s own fraudulent use, defendant did not give possession or control of victim’s credit card information to another to use to defraud victim and therefore did not “transfer” credit card under this section. State v. Bowen, 280 Or App 514, 380 P3d 1054 (2016)

Where defendant gave possession or control of victim’s credit card information to third party for third party to use to defraud victim, defendant “transferred” credit card under this section. State v. Bowen, 280 Or App 514, 380 P3d 1054 (2016)

Essence of obtaining or possessing personal identification is exercise of control over identification. State v. Connolly, 296 Or App 492, 439 P3d 481 (2019), Sup Ct review denied

165.803

NOTES OF DECISIONS

Where defendant had files containing personal information of 27 individuals and state charged defendant with 27 counts of identity theft under ORS 161.800 and, based on same conduct, one count under this section, ORS 161.800 charges merge into charge under this section, with application of ORS 161.067. State v. Gensitskiy, 365 Or 263, 446 P3d 26 (2019)