415 P.3d 73
Or. Ct. App.2018Background
- Defendant broke into his ex-girlfriend’s locked apartment while she was at work, damaging the door frame; he did not have permission to enter that day.
- Inside, defendant turned on lights, watched TV, ate a can of chili, moved items, and left a lengthy note apologizing and asking to visit and use the apartment for showers/food.
- Police found the broken door; defendant told an officer he broke in because he feared the victim was having a seizure, a narrative similar to what he suggested in the note.
- Defendant was charged with first‑degree burglary (unlawful entry into a dwelling with intent to commit theft and/or criminal mischief) and second‑degree criminal mischief (damage to the door); he was convicted of both.
- At trial defendant moved for judgment of acquittal on the burglary charge, arguing there was no evidence he entered with intent to commit a crime; the trial court denied the motion and later found burglary based primarily on alleged theft-of-services (use of electricity).
- On appeal the court reviewed whether, viewing evidence in the light most favorable to the state, a rational trier of fact could find beyond a reasonable doubt that defendant entered with intent to commit theft, theft of services, or criminal mischief.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supported finding defendant entered with intent to commit theft/theft of services (use of electricity) | Use of lights/TV constituted appropriation or deprivation of electricity; that use supports inference of intent to commit theft/theft of services on entry | No evidence defendant intended to commit any crime on entry; use of utilities and eating were consistent with need, not criminal intent | Reversed: insufficient evidence to prove intent to commit theft or theft of services at time of entry; verdict on burglary cannot stand |
| Appropriate remedy when burglary conviction reversed but unlawful entry established | N/A | N/A (parties agreed) | Remand with instruction to enter conviction for first‑degree criminal trespass (lesser‑included offense) and resentence |
Key Cases Cited
- State v. Cunningham, 320 Or. 47 (sets standard for reviewing sufficiency of evidence on judgment of acquittal)
- State v. J.N.S., 258 Or.App. 310 (requires avoiding impermissibly speculative inferences about criminal intent from circumstantial evidence)
- State v. Mayea, 170 Or.App. 144 (discusses intent and related burglary issues)
- State v. Litscher, 207 Or.App. 565 (first‑degree criminal trespass is lesser‑included offense of first‑degree burglary)
- State v. Touchstone, 188 Or.App. 45 (remedy: entering judgment on lesser‑included offense when elements were alleged and uncontested)
- State v. Sanders, 280 Or. 685 (burglary indictment must specify the crime alleged as intended at time of entry)
- State v. White, 341 Or. 624 (defines remaining unlawfully versus entering unlawfully)