State v. Taylor, 523 P.3d 696

Defendant took a dealership Cadillac on a test drive with a salesperson (D) riding in the back; defendant drove and was accompanied and directed by D until he forced D out.
During the drive, defendant told D he had a gun, said he was "taking" the car, and drove away after D exited; defendant was later arrested.
Indictment: two counts of second-degree robbery (Counts 1 & 2) and one count of unlawful use of a vehicle (UUV) (Count 3); the state proceeded at trial on UUV as the predicate for robbery.
At close of the state’s case the trial court sua sponte made a general motion for judgment of acquittal (MJOA) on defendant’s behalf and denied it; defendant proceeded pro se.
The trial court convicted defendant on Count 1 (robbery) and Count 3 (UUV), acquitted on Count 2, and defendant appealed arguing the MJOA should have been granted and alternatively that the convictions should merge.
The appellate court held the MJOA claim was unpreserved and not plain error under controlling cases (Civil, Fuller) given distinguishing facts, but accepted the state’s concession that the court plainly erred by failing to merge UUV (the predicate) into the robbery conviction and remanded for merger and resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court should have granted an MJOA on the UUV count because defendant had custody by agreement	State: evidence showed defendant "took" the car without owner consent and proved elements of ORS 164.135(1)(a)	Taylor: Civil and Fuller bar conviction under (1)(a) where possession was obtained by agreement (test drive permission) so MJOA required	Not preserved; plain error not established—facts differ from Civil/Fuller (owner’s agent present and directing until forced out), so reasonable dispute exists
Whether the UUV and robbery convictions must merge (UUV was predicate for robbery)	State: initially contested but conceded on appeal that merger was required	Taylor: convictions must merge because UUV was the predicate offense for second-degree robbery	Plain error; guilty verdicts must merge under ORS 161.067 (remand for merger and resentencing)

State v. Civil, 283 Or App 395 (2017) (construed ORS 164.135(1)(a) as inapplicable where custody was obtained by agreement)
State v. Fuller, 303 Or App 47 (2020) (applied Civil to reverse (1)(a) conviction where defendant had agreement-based custody)
State v. Cervantes, 319 Or 121 (1994) (standard of review for denial of MJOA)
State v. Vanornum, 354 Or 614 (2013) (plain-error legal standard)
State v. Gornick, 340 Or 160 (2006) (discretion to correct plain error)
Martinez v. Cain, 366 Or 136 (2020) (merger required where one offense is predicate for the other)
State v. Postlethwait, 312 Or App 467 (2021) (theft/robbery merger analysis illustrating predicate-offense merger)