State v. Davis, 385 P.3d 1245

Defendant was found inside the Amy M, a docked boat he did not own or have permission to enter; officers observed prior boarding and defendant initially refused to leave.
Video-recorded statements by defendant indicated repeated prior use of the Amy M (e.g., “I’ve been on this boat more times than you can count,” “I’ve done it 195 times”), though defendant denied staying overnight at trial.
Defendant was charged with multiple counts including first-degree burglary of the Amy M (Count 1), which requires that the structure be a “dwelling.”
Trial court granted acquittal on first-degree burglary as to a different boat (the American) for lack of evidence of lodging, but denied the motion as to the Amy M; defendant was convicted on Count 1.
On appeal defendant argued the trial court erred because a defendant’s own unlawful occupancy cannot, by itself, make a building a “dwelling” under ORS 164.205(2). The state argued defendant’s prior statements alone sufficed.
The court considered statutory text, context, and legislative history and concluded defendant’s own prior unlawful habitation is insufficient to convert a building into a “dwelling.” The first-degree burglary conviction for Count 1 was reversed and remanded for entry of second-degree burglary.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Defendant)	Held
Whether a building is a “dwelling” if the defendant himself previously lodged there	Defendant’s statements and evidence of livable furnishings suffice to show the Amy M was a dwelling; “a person” in statute includes the defendant	A defendant’s own prior unlawful occupancy cannot satisfy “regularly or intermittently occupied by a person lodging therein at night” — the statute contemplates occupants other than the actor	Court held a defendant’s own unlawful habitation is insufficient; conviction for 1st‑degree burglary reversed and remanded for 2nd‑degree burglary

Gaines v. State, 346 Or 160 (statutory interpretation framework)
PGE v. Bureau of Labor & Indus., 317 Or 606 (statutory construction principles)
State v. Sanchez-Alfonso, 224 Or App 556 (burglary statutory scheme and gradations)
State v. Ramey, 89 Or App 535 (reason for heightened penalty for dwellings: protect occupants from terror)
State v. Taylor, 271 Or App 292 (legislative history on definition of dwelling)
State v. Dasa, 234 Or App 219 (ambiguity threshold in statutory interpretation)
State v. Touchstone, 188 Or App 45 (remand for entry of conviction on lesser‑included offense appropriate)