323 P.3d 276
Or. Ct. App.2014Background
- Defendant convicted of three counts of second-degree burglary and one count of identity theft; appeals denial of judgment of acquittal (MJOA) on two burglary counts (Counts 3 and 5).
- Second-degree burglary requires unlawful entry or remaining in a "building" with intent to commit a crime (ORS 164.215); "enter or remain unlawfully" under ORS 164.205(3)(a) requires premises to be not open to the public and the entrant not licensed or privileged.
- Count 3: AWC office suite on second floor of an office building — interior door usually locked, no windows or signage, requires knocking; inside a common area had file cabinet, plant, fax, break-room items; employee West left briefly and returned to find defendant coming from an interior office and West’s wallet missing.
- Count 5: University of Oregon — Room 120 in Deschutes Hall had a public-access front counter with a computer, handouts, and a sign directing people to an interior office if no one was at the counter; front door to building had no public-entry restrictions; employee Smith worked behind the counter and testified she expected some privacy behind the counter but acknowledged the public could visit Room 120; Smith later discovered her wallet missing after seeing defendant behind the counter.
- Trial court denied MJOA on Counts 3 and 5; on appeal the court reviews whether a rational factfinder, viewing evidence in the light most favorable to the State, could find each element beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Room 120 was "not open to the public" (unlawful entry element for Count 5) | State: evidence of counter layout and work area could show restricted access behind the counter | Def: Room 120 was open to the public — public counter, computer, handouts, no doors or signage restricting entry | Reversed Count 5: rational factfinder could not find Room 120 was "not open to the public"; MJOA should have been granted on Count 5 |
| Whether AWC office suite was "not open to the public" (unlawful entry element for Count 3) | State: physical layout, lack of windows/signage, typically locked door, and no employees present supported nonpublic character | Def: suite was open (unlocked door, waiting-room–like common area) | Affirmed Count 3: sufficient objective evidence that AWC suite was not open to the public at time of entry |
| Whether AWC office suite qualified as a "building"/separate unit for burglary (Count 3) | State: AWC suite had distinct use/physical identity and controlled access, so it was a separate unit/building | Def: argued interior work area is not a separate building and relied on cases limiting burglary when area is essentially public/semi-open | Affirmed Count 3: evidence supported finding the AWC suite was a separate unit/building under ORS 164.205(1) |
Key Cases Cited
- State v. Hartfield, 290 Or. 583 (conjunctive reading of ORS 164.205(3)(a): premises must be not open to the public and entrant not licensed or privileged)
- State v. Pittman, 223 Or. App. 596 (area with public counter and no restrictive physical cues is open to the public)
- State v. Jenkins, 157 Or. App. 156 (where a building consists of separate units, each unit may be a separate "building" for burglary)
- State v. Hinton, 209 Or. App. 210 (objective reasonable-person test for whether premises are open to the public)
- State v. Hall, 327 Or. 568 (standard of review for denial of MJOA)