State v. Palomo
Case #: A148047
Egan, J. for the Court; Armstrong, P.J.; and Nakamoto, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A148047.pdf
Criminal Law: A person will be convicted of prostitution under ORS 167.007 when sexual conduct is exchanged for something of economic value and the transaction is commercial in character.
Defendant appealed the trial court’s denial of a motion for judgment of acquittal for a prostitution conviction and a subsequent conviction of a violation of probation for the prostitution conviction. A police officer received notice that the Defendant was flashing her breasts in exchange for a cigarette. The officer overheard Defendant telling another man that she would give him something, but was unsure of what was said. Later, the officer witnessed Defendant performing oral sex on that man. The State did not offer testimony of the exchange of cigarettes for its truth, but the trial court instead convicted based on circumstantial evidence. On appeal, the Court found that there was insufficient evidence in the record that the Defendant and the man agreed to exchange anything of value. To be a “fee” within ORS 167.007, the Court concluded that a “fee” must be of economic value and involve a commercial transaction. Because there was no evidence in the record for a trier of fact to conclude that something of economic value was exchanged, the Court held that the trial court erred in denying the motion for judgment of acquittal and reversed. Since the basis of the violation of probation was the prostitution conviction, the Court also reversed and remanded that conviction. Reversed and remanded.