State v. Henderson, 455 P.3d 503

Defendant (ex-partner) unlawfully entered the victim’s dwelling, damaged property (TV, lamps) and bled on furniture; he sent the victim texts showing his injury, which led to his arrest.
Charged with first-degree burglary (dwelling) and second-degree criminal mischief; after the state rested defendant moved for judgment of acquittal on burglary for lack of intent at time of entry.
Trial court denied the motion; jury convicted on both counts. Court of Appeals reversed the burglary conviction, holding the state must prove intent to commit an additional crime at the moment of unlawful entry.
The Oregon Supreme Court granted review to decide whether the requisite intent may be formed at any time while unlawfully present, rather than only at the start of the trespass.
The Supreme Court affirmed the circuit court: intent to commit a crime may be formed at any time during unlawful presence (remaining), and the trial court correctly denied the judgment of acquittal; failure to give a jury concurrence instruction was not plain error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether burglary requires intent to commit an additional crime at the initiation of the trespass, or whether forming that intent later while unlawfully present suffices	State: statute (ORS 164.215/164.225) requires only that unlawful entry or remaining be accompanied at some point by intent; intent may develop during unlawful presence	Henderson: intent must exist at the start of the trespass (at entry or at the moment a lawful presence became unlawful); later-formed intent during an unlawful entry is insufficient	Intent need only exist at some point during the unlawful presence (may be formed after entry); burglary conviction affirmed
Whether the trial court committed plain error by failing sua sponte to give a jury concurrence instruction on the criminal mischief count	N/A (state argued single act theory of mischief)	Henderson: absent a concurrence instruction, jurors may have convicted based on different factual instances of mischief	No plain error; trial court not required to give the instruction sua sponte

State v. Pipkin, 354 Or 513 (2013) ("entering" and "remaining unlawfully" are alternative/complimentary ways to prove unlawful presence)
State v. Luckey, 150 Or 566 (1935) (older formulation requiring intent at time of breaking and entering)
Quarles v. United States, 139 S. Ct. 1872 (2019) (remaining-in burglary: intent may be formed at any time while unlawfully remaining)
State v. Gornick, 340 Or 160 (2006) (plain-error review standard)