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FILED: June 15, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JACK MERLE WRAY, JR.,

Defendant-Appellant.

Multnomah County Circuit Court
080130068
A141581

Janice R. Wilson, Judge.

Submitted on November 30, 2010.

Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Michael R. Washington, Senior Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Brewer, Chief Judge, and Landau, Judge pro tempore.

SERCOMBE, P. J.

Affirmed.

SERCOMBE, P. J.

Defendant appeals a judgment of conviction for, among other things, criminal mischief in the first degree, ORS 164.365. He assigns error to the trial court's denial of his motion for judgment of acquittal on that charge, contending that there was insufficient evidence that the property he damaged was "used in direct service to the public" within the meaning of ORS 164.365(1)(a)(E).(1) We conclude that the evidence was sufficient to establish that defendant damaged property "used in direct service to the public" and, accordingly, affirm.

The relevant facts are few and undisputed. The evidence showed that defendant had cut and stolen copper wiring from a "slide fence" that ran along a Union Pacific Railroad "main-line track." Slide fences are used to detect track obstructions in areas where extreme hillsides or trees border the railroad right of way. When the wiring on a slide fence is cut or broken, the railroad company is alerted and train traffic is halted until the damage can be investigated and fixed.

Defendant was charged with criminal mischief in the first degree on the theory that he intentionally damaged railroad property "which was used in direct service to the public." At trial, defendant moved for a judgment of acquittal, arguing that there was no evidence that the slide fence was "used in direct service to the public." Alternatively, he argued that, regardless of how the slide fence was used, there was no evidence that the railroad track adjacent to the fence was used in service to the public rather than for Union Pacific's private purposes. The trial court denied the motion.

On appeal, defendant renews his argument that the railroad's slide fence was not "used in direct service to the public" within the meaning of ORS 164.365(1)(a)(E). Specifically, he contends that the slide fence indirectly supported the railroad's service to the public by detecting possible blockages on the track but that the fence was not itself used to provide services to the public. Defendant argues further that, "to the extent defendant's conduct in damaging the slide fence impacted the tracks themselves," there was no evidence that the tracks were used in service to the public rather than for private enterprise. Although defendant acknowledges that a railroad employee described the track as a "main-line track," he contends that there was no evidence in the record as to what that designation means and that the record, therefore, was insufficient to support an inference that the tracks were used for a public function.

The state responds that the slide fence ensured the safe and efficient transport of persons or property aboard passing trains and that that function provided a direct benefit to the public. Thus, the state argues that the fence was "used in direct service to the public" within the meaning of ORS 164.365(1)(a)(E) and, consequently, that the trial court properly denied defendant's motion for judgment of acquittal.

In reviewing a trial court's denial of a motion for judgment of acquittal, "our task ordinarily is to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the offense proved beyond a reasonable doubt." State v. Thomas, 229 Or App 453, 456, 211 P3d 979, rev den, 347 Or 349 (2009). However, where, as here, the dispute centers on the meaning of the statute defining the offense, the issue is one of statutory construction. Id. That is a question of law. Id.

When construing a statute, we examine the text of the statute in context, along with any relevant legislative history, to discern the legislature's intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). ORS 164.365(1) provides, in relevant part:

"A person commits the crime of criminal mischief in the first degree who, with intent to damage property, and having no right to do so nor reasonable ground to believe that the person has such right:

"(a) Damages or destroys property of another:

"* * * * *

"(E) Which is the property of a public utility, telecommunications carrier, railroad, public transportation facility or medical facility used in direct service to the public; or

"(F) By intentionally interfering with, obstructing or adulterating in any manner the service of a public utility, telecommunications carrier, railroad, public transportation facility or medical facility; or

"(b) Intentionally uses, manipulates, arranges or rearranges the property of a public utility, telecommunications carrier, railroad, public transportation facility or medical facility used in direct service to the public so as to interfere with its efficiency."

As noted, defendant was convicted under ORS 164.365(1)(a)(E) for intentionally damaging or destroying "the property of a * * * railroad * * * used in direct service to the public." He does not dispute that, without any right to do so, he intentionally damaged or destroyed railroad property. Instead, defendant argues only that the railroad property he damaged was not "used in direct service to the public."

We start with the text of the statute, giving words of common usage their plain and ordinary meaning. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). "Service" can encompass a broad range of meanings. As pertinent here, the term is variously defined as "the performance of work commanded or paid for by another," "an act done for the benefit or at the command of another," "conduct or performance that assists or benefits someone or something," "supply of needs," "useful labor that does not produce a tangible commodity * * * ," and "the provision, organization, or apparatus for conducting a public utility or meeting a general demand ." Webster's Third New Int'l Dictionary 2075 (unabridged ed 2002). Thus, generally speaking, the statute prohibits a person from damaging property used in the performance of work for the public or, put another way, property used in the provision of a benefit to the public.

The parties seem to agree that a railroad's primary service to the public is the transportation of passengers or goods. See, e.g., ORS 824.020(2) (defining "railroad," in part, as a "common or for hire carrier"); ORS 164.125(2) (defining "services" for purposes of "theft of services" to include transportation; the supplying of public utilities such as gas, electricity, steam, and water; and the use of telephone, computer, and cable television systems). In the context of a railroad, then, the statute proscribes damaging property used in the provision of transportation to the public.

However, the statute contains a further limitation: the property must be used in "direct" service to the public. "Direct," like "service," has a multitude of meanings. Among the possible definitions are "operating or guided without digression or obstruction," "characterized by or giving evidence of a close esp. logical, causal, or consequential relationship," "marked by absence of an intervening agency, instrumentality, or influence : IMMEDIATE," and "made, carried on, or effected without any intruding factor or intervening step." Webster's at 640. Here, the statutory context does not favor any one definition. Nonetheless, collectively those definitions indicate that the damaged property must be closely related to or immediately used in the provision of transportation to the public.

Other provisions of the statute make similar references to the "service" of a railroad or other entity, or to property "used in direct service to the public," but provide little contextual guidance as to the meaning of those terms. See ORS 164.365(1)(a)(F) (prohibiting interference with the service of a public utility, railroad, or similar entity); ORS 164.365(1)(b) (prohibiting manipulation or rearrangement of property of a public utility, railroad, or similar entity "used in direct service to the public so as to interfere with its efficiency"). Nonetheless, our analysis of the statute's plain meaning is supported by the legislative history.

Prior to 1973, the offense of criminal mischief in the first degree was defined as damaging the property of another in an amount exceeding $1,000 or by means of an explosive. See ORS 164.365 (1971), amended by Or Laws 1973, ch 133,