Argued and Submitted, Spray High School, Spray May 7,
Marion County Circuit Court 11C50869. Claudia M. Burton, Judge.
Erik Blumenthal, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Matthew J. Lysne, Senior 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.
[270 Or.App. 38] EGAN, J.
Defendant was convicted of third-degree robbery, ORS 164.395, and theft of services, ORS 164.125, after he scuffled with a taxi driver while fleeing from a cab without paying. Defendant appeals the judgment, challenging his conviction for third-degree robbery but not theft of services. He assigns error to the trial court's denial of his demurrer and the court's denial of his motion for judgment of acquittal (MJOA), arguing that, although he may have stolen services from the driver, he did not steal property, as
required by ORS 164.395. The state argues that defendant did steal property, because the " benefit of a service" is a chose-in-action and a chose-in-action is property. We agree with defendant that the trial court erred in denying his MJOA. Accordingly, we reverse that conviction; otherwise we affirm.
We begin with defendant's second assignment of error--that the trial court erred when it denied his MJOA. Our resolution of that issue obviates the need to consider defendant's challenge to the denial of his demurrer. We review a trial court's denial of an MJOA to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the state proved all the essential elements of the offense beyond a reasonable doubt. State v. Kaylor, 252 Or.App. 688, 691, 289 P.3d 290 (2012).
The facts are undisputed. After taking a ride in a taxi cab, defendant refused to tender money--offering instead to trade food for the ride--then scuffled with the driver before fleeing without paying. The state charged defendant by indictment. Count 1 of the indictment, alleging robbery in the third degree, stated:
" The defendant, on or about December 4, 2011, in Marion County, Oregon, did unlawfully and knowingly, [270 Or.App. 39] while in the course of committing or attempting to commit theft of services, and with the intent of preventing or overcoming resistance to defendant's theft of services or retention of the benefit of that theft of services immediately after the taking, use or threaten the immediate use of physical force upon [the driver]."
Defendant filed a demurrer, arguing that a taxi ride is not property and therefore the indictment did not state any offense, including the crime of third-degree robbery. As relevant here, the state argued in response that the definition of property as it applies to the robbery statute is " expansive" and, moreover, a " fee for a service owed" is " evidence of a debt," and therefore property. The court denied defendant's demurrer stating, " as set forth in the state's response to the demurrer, I find that the definition of 'property' is sufficiently expansive to encompass the services of a taxi (vehicle and driver) which are customarily provided in exchange for a fee." At the close of the state's case, defendant moved for a judgment of acquittal, arguing, first, that defendant used physical force only after the taking, not in the course of taking, and, second, that services are not property that can be taken in the course of a robbery. The state argued in response that the benefit of a taxi ride is " being transported from A to B without having to pay" and that that benefit was property that defendant used force to take or retain. The court agreed with the state's reasoning and denied defendant's MJOA.
On appeal, defendant renews his argument that a taxi ride is a service, not property, and therefore the state presented legally insufficient evidence to support a guilty verdict for the crime of third-degree robbery, which requires the taking of property. For the purpose of this case, the state agrees, on appeal, that a service is not property. However, the state argues that the " benefit of theft of services" is " property." The state explains that such a distinction is meaningful because the benefit of a service is the right to payment, and " [t]he right to payment *** is a 'chose-in-action,'" and [270 Or.App. 40] a ...