Multnomah County Circuit Court dismisses theft charge over unpaid headphones

The Multnomah County Circuit Court dismissed the theft charge against Ellis Ward after finding that the State of Oregon had proved the headphones were unpaid but had not established that Ward knowingly stole them rather than unsuccessfully attempting payment.

Ward had sought dismissal, maintaining that he tapped his phone at self-checkout, encountered an unclear error screen and was walking toward a service counter for help when he was stopped. The court entered judgment for Ward, held that the charge was not sustained on the hearing record, and made no monetary award, costs or interest.

• Judgment entered for defendant Ellis Ward.
• The theft charge was dismissed.
• No monetary award, costs or interest were awarded.

The court treated the self-checkout transaction log as reliable evidence that a headphone item had been scanned and that no payment or receipt was completed. It found that this was strong evidence the item was unpaid at the relevant time, but not conclusive proof of theft.

The court said the log did not show what appeared on Ward's phone or the payment terminal, and could not distinguish between a knowing taking and a failed payment attempt. It therefore had to assess whether the State had proved the required culpable mental state, rather than merely non-payment.

Jordan Pike, a kiosk employee, supported the State's account that Ward moved away from the checkout area with the item and later said that his phone “must not have gone through.” But Pike could not say whether the terminal had displayed an error before Ward walked away, which the court said limited the evidence on Ward's knowledge.

Ward's payment-error account was not independently verified, the court noted, but it was internally consistent. He said he tapped to pay, saw an unclear error, placed the headphones in his tote while carrying coffee, and moved toward the service counter for assistance.

The court also found an unresolved factual conflict over whether Ward crossed a painted exit line. Pike said he did; Ward denied moving toward an exit with an intent to steal and said he was headed to the service counter. No independent evidence resolved that dispute.

The court concluded that the State's interpretation of Ward's post-stop statement was possible, but so was the defence account that Ward had already attempted payment and was repeating the problem after being stopped. “Unpaid status alone is not the same as theft,” the court held.

The record supports competing inferences, and the State has not carried the burden of resolving them in its favor.

The State relied on the transaction log showing that the headphones were scanned at 5:42 p.m. without a completed payment or receipt. It also relied on Pike's account that Ward crossed the painted exit line with the unpaid headphones and mentioned a phone-payment problem only after being stopped.

According to the State, the timing of Ward's statement supported an inference that the payment issue was an after-the-fact explanation. The State accepted that it had no photograph or recording of the phone screen and did not claim to know what the terminal displayed.

Ward submitted that he used tap-to-pay at self-checkout, received an unclear error screen and believed the reader had malfunctioned. He said he put the headphones in his tote because he was carrying coffee, walked a short distance toward the service counter, and offered to pay immediately when approached.

The defence acknowledged that it had no electronic record confirming the attempted tap or the alleged error. It argued, however, that the absence of a completed payment did not establish why payment was incomplete, and that the State's evidence did not disprove a failed-payment attempt.

The case concerned an allegation that Ward took wireless headphones from the Riverfront Market kiosk without paying. The hearing record consisted principally of the self-checkout transaction log, Pike's evidence, and Ward's competing account of the encounter.

During cross-examination, Pike said he had access to self-checkout transaction logs as part of his job but had not personally reviewed the logs for this incident unless asked. The court overruled a foundation objection to that question, while sustaining a later objection to a compound and argumentative question.

The dismissal is limited to the evidence presented at this hearing. The court did not find Ward's account affirmatively proven in every detail; it found only that the State had not met its burden to prove knowing theft rather than a failed payment attempt on this record.