Argued and submitted April 25, 2014
Washington County Circuit Court, D121196M, Gayle Ann Nachtigal, Judge.
Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Preusch, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 347] NAKAMOTO, J.
Defendant took several metal items from the victim's recycling drop box and was convicted of third-degree theft, ORS 164.043. To establish third-degree theft, the state must prove, among other things, that the items that defendant took had some " value" as that term is used in the relevant statutes. On appeal, defendant argues that the trial court erred in denying his motion for judgment of acquittal. We write to address defendant's argument that the state failed to adduce sufficient evidence that the stolen property had value and affirm.
We review the denial of a motion for judgment of acquittal to determine whether a rational trier of fact viewing the evidence in the light most favorable to the state could have found that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Bivins, 191 Or.App. 460, 462, 83 P.3d 379 (2004). With that in mind, the relevant facts are as follows. At approximately 3:00 a.m., defendant entered the commercial property of the victim company and took several metal items from its recycling drop box, including a chair, a shelving unit, and some gutters. The police apprehended defendant, who was subsequently tried by a jury. At trial, an employee of the victim testified that the victim contracts with a recycling company that hauls away the drop box once it is full; that the recycling company pays the victim for metal materials left in the drop box; and that the amount paid for the contents varies, depending on the weight and the type of metal. The employee did not know how much the recycling company would have paid for the specific items that defendant took. The state did not offer any other evidence as to the value of those items.
Defendant moved for a judgment of acquittal at the close of the state's case, arguing that the state failed to prove that the property had value:
" [T]he State has only presented evidence that there is a collection service that does collect metal. They have not been [266 Or.App. 348] able to place * * * any kind of monetary value
on it, nor have they been able to indicate that the service in fact would pay for the ...