State v. Cassidy

“Business facility” is a term that can be broadly construed to encompass real property that is used by and is necessary for the operation of a particular business venture.

Appellant appealed a judgment of conviction for one count of theft of services under ORS 164.125(1)(b). Appellant assigned error to the trial court’s denial of her motion for a judgment of acquittal on that charge, challenging the sufficiency of the evidence as to the “commercial benefit” and “business facility” elements. Specifically, appellant argued that the benefits she had received did not meet the “commercial benefit” standard, and that the property in question was not a “business facility” because it was not “something built, installed, constructed, or established for the purpose of engaging in the economic exchange of buying and swelling commodities or services.” ORS 164.125(1)(b). With respect to her first argument, the Court of Appeals held that it was not preserved because none of the arguments raised in her motion for judgment of acquittal argued that the benefits received were not “commercial benefits.” See State v. Murphy, 306 Or App 535 (2020). The court defined “business facility” as a term that can be broadly construed to encompass real property that is used by and is necessary for the operation of a particular business venture. The court held that that definition necessarily including the vacation rental property in question.

Affirmed.