333 P.3d 1147
Or. Ct. App.2014Background
- Garrett, J. was convicted of burglary in the second degree under ORS 164.215 after entering Albany Tennis Club through the unlocked front door and stealing from a purse left in the women’s locker room.
- On appeal, two assignments of error were raised: (1) the state failed to prove the club was not open to the public; and (2) the trial court plainly erred in its burglary jury instruction.
- Evidence showed the club’s facilities and access controls (signs, card reader, desk with no staff, and lack of a front-reception area) and that the door was sometimes unlocked to permit nonmembers during events.
- On January 10, 2012, the door was unlocked from about 2:45 p.m. to 5:00 p.m. for a nonmember parent; defendant, not a member, entered and left the club; Dwier reported her purse missing after the incident.
- The indictment had been modified to remove the locker-room reference; the court instructed that second-degree burglary required unlawfully entering a building with restricted access, and the jury convicted on burglary while acquitting theft.
- The court held the record could support a finding that the club was not open to the public and denied the judgment of acquittal; it declined to review the unpreserved plain-error claim about the jury instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the club not open to the public at entry? | State argued not open to the public. | Garrett argued the club was open to the public at entry. | Yes; the record supports not open to the public. |
| Plain-error review of the jury instruction on unlawfully entering/remain unlawfully? | State likely argued instruction was proper under ORS 164.205(3)(a). | Garrett argued instruction misstates conjunctive requirement. | Declined to exercise discretion; affirmed without addressing the unpreserved plain-error issue. |
Key Cases Cited
- State v. Collins, 179 Or App 384, 39 P.3d 925 (Or. App. 2002) (conjunctive interpretation of ORS 164.205(3)(a))
- State v. Davis, 261 Or App 38, 323 P3d 276 (Or. App. 2014) (two-element test: not open to public and not licensed or privileged)
- State v. Pittman, 223 Or App 596, 196 P3d 1030 (Or. App. 2008) (evidence of open-to-public status requires objective indicators beyond wholesale/business type)
- State v. Hinton, 209 Or App 210, 147 P3d 345 (Or. App. 2006) (objective test for not open to the public)
- State v. Keffer, 3 Or App 57, 471 P2d 438 (Or. App. 1970) (general rule allows statute-language jury instruction if not confusing)