State v. Shapiro, 349 P.3d 608

Background

Defendant, a frequent OHSU visitor with prior exclusions and security encounters, was admitted to OHSU emergency department late at night and escorted back after leaving his room; he was later escorted off campus after treatment.
OHSU had security measures: exterior doors locked after 9:00 p.m., indoor walkways between buildings, and a security guard stationed between the emergency department and other hospital buildings to screen persons seeking access.
Surveillance video showed defendant enter the ICU waiting room in Kohler Pavilion between ~12:30–2:30 a.m., handle a purse, place something in his pocket, and leave; the purse owner later reported missing cash.
Defendant was charged with second-degree burglary (entering premises not open to the public with intent to commit a crime) and second-degree theft; convicted of burglary and lesser third-degree theft after a bench trial.
At trial and on appeal defendant argued the ICU waiting room was "open to the public" as a reasonable admitted patient would believe no permission was required; the state argued access was restricted by guard screening and prior directives forbidding defendant from roaming the campus.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ICU waiting room was "not open to the public" for burglary	Access was restricted by after-hours locks and a security guard who screens and logs non-patients, so a reasonable person would perceive permission required	A reasonable admitted patient would believe they could move from the emergency department into other hospital waiting areas without special permission	The court held the waiting room was not open to the public; security screening supported an inference of restricted access
Whether defendant was "licensed or privileged" to be in the ICU waiting room	Defendant had repeatedly been told by security he was forbidden to go beyond ED; nullified formal exclusion orders did not grant actual permission	Defendant argued nullification of exclusion orders meant he was no longer barred and patients are generally allowed to move	The court held sufficient evidence existed that defendant was not licensed or privileged to be in other parts of campus despite formal nullification of prior orders
Sufficiency of evidence for burglary (denial of judgment of acquittal)	Surveillance plus access controls and guards permitted a reasonable factfinder to find unlawful entry with intent	Defendant contended lack of objective indicators that area was closed to a patient made the entry lawful	The court affirmed denial of judgment of acquittal—evidence was sufficient for burglary conviction
Sufficiency of evidence for theft	Video showing handling of purse and missing money supported theft conviction	Defendant challenged sufficiency (waived further discussion on appeal)	The court rejected the theft challenge and affirmed conviction (no extended discussion)

Key Cases Cited

State v. Cervantes, 319 Or 121 (discusses standard of reviewing denial of judgment of acquittal)
State v. King, 307 Or 332 (sets test for review whether evidence allows any rational trier of fact to find elements beyond a reasonable doubt)
State v. Hinton, 209 Or App 210 (objective test for whether premises are open to the public viewed from defendant's perspective)
State v. Davis, 261 Or App 38 (explains "not open to the public" means access restricted to certain people)
State v. Etzel, 264 Or App 732 (holding membership or licensed access does not make premises open to the general public)
State v. Pittman, 223 Or App 596 (contrasting factors showing premises open to general public)
State v. Mills, 354 Or 350 (cited regarding abrogation on other grounds of earlier authority)