State v. J. N. S.
258 Or. App. 310
Or. Ct. App.2013Background
- Youth and a companion unlawfully entered a vacant house after breaking a back-door window; they took a key while leaving and were detained by police.
- Youth said he thought the house was abandoned and wanted a place to hang out; he testified he did not form intent to steal until after entering.
- Police found a modified tennis ball filled with smokeless gunpowder and a Pixie Stick‑wrapper fuse; youth admitted he made it to create a visual display and might set it off later outdoors.
- The state charged five counts (burglary 2nd, unlawful possession and unlawful manufacture of a destructive device, criminal mischief 3rd, theft 3rd).
- Juvenile court adjudicated youth delinquent on burglary 2nd, possession and manufacture of a destructive device (merged), criminal mischief 3rd, and theft 3rd. Youth appealed the burglary and destructive‑device rulings (theft value claim was rejected without discussion).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether burglary 2nd can be based on unlawful entry followed by formation of intent to commit a crime while inside | State: Yes — if defendant forms intent while unlawfully remaining inside, burglary is proven | Youth: No — burglary requires intent at time of unlawful entry; forming intent after entry cannot support burglary 2nd | Reversed burglary 2nd conviction; burglary requires intent at initiation of trespass. Remanded for judgment of criminal trespass 2nd and resentencing |
| Whether tennis‑ball device is a "destructive device" or excluded as a "pyrotechnic" device under ORS 166.382(2)(a) | State: Device is a "bomb" (destructive device) and is not a pyrotechnic because it lacked functional/emergency purpose | Youth: Device was designed primarily to produce a visual/audible effect (pyrotechnic), so excluded from "destructive device" definition | Reversed and remanded for new adjudication on possession and manufacture counts because trial court misapplied the pyrotechnic exclusion and did not resolve factual issues about design intent |
| Whether theft 3rd was proven by taking the key (value element) | Youth: Key had no proven value; insufficient proof for theft 3rd | State: (argued value was established) | Assignment of error rejected by court without discussion (the claim not pursued further) |
Key Cases Cited
- State v. White, 341 Or 624 (interpreting "enters or remains unlawfully" to mean burglary requires intent at the time of the trespass and clarifying "remains unlawfully" addresses lawful entry followed by unlawful remaining)
- State v. Chatelain, 220 Or App 487 (burglary distinguished from trespass by contemporaneous intent to commit a crime; burglary’s purpose is to punish trespass for committing a crime)
- State ex rel. Juv. Dept. v. Garrett, 193 Or App 629 (defines "pyrotechnic" as commonly understood fireworks—devices prepared to provide visible or audible effect)
- State v. Neff, 246 Or App 186 (standard for reviewing denial of motion to dismiss in juvenile court — evidence viewed in light most favorable to state)
- State v. Barboe, 253 Or App 367 (reversal and remand appropriate when factual issues material to an element remain unresolved)