State v. Webb, 262 Or. App. 1

On April 18, 2010, defendant broke into a tractor trailer used by the victim to store inventory and business records for an adjacent military surplus retail store; the trailer was stationary for ~18 years and contained inventory and records.
On the same day defendant also broke into a U-Haul trailer and stole items; defendant was charged with multiple offenses arising from those acts.
Defendant was convicted of: two counts of first-degree theft (Counts 2 and 5), one count of second-degree burglary (Count 3) for the tractor-trailer theft, and one count of unlawful entry of a motor vehicle (Count 6).
Sentencing: probation on Counts 2 and 3; 13 months’ imprisonment + 1 year post-prison supervision (PPS) on Count 5 as a repeat property offender under ORS 137.717; Count 6 concurrent 12 months with credit for time served.
Defendant moved for judgment of acquittal on the burglary charge, arguing the trailer was not a “building” under ORS 164.205(1) because it was merely used for storage and not adapted for carrying on business or containing humans for extended periods.
Defendant also argued the court improperly used other convictions (Counts 2 and 3) to qualify him as a repeat property offender without a jury finding they were separate criminal episodes; the court held that challenge moot because later convictions produced a merged PPS term.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the tractor trailer is a "building" under ORS 164.205(1) for second-degree burglary	State: trailer was adapted and used to carry on the victim's retail business (store inventory and records), so it meets the statutory definition	Defendant: trailer was only for storage, not adapted for carrying on a business or for occupying by humans; Scott and the Commentary support a narrower reading	Court: Evidence showed substantial adaptations and business use (stationary, long-term storage of inventory/records, mural, filing cabinet, inventory sheet), so it was a "building"; conviction affirmed
Whether the court erred by using Counts 2 and 3 to enhance Count 5 under the repeat property offender statute without jury findings that they were separate episodes	State: sentencing calculation appropriate under statute (but later asserted mootness due to subsequent convictions)	Defendant: under Apprendi/Mallory and related Oregon cases, the jury must find separateness of episodes before court uses convictions to enhance	Court: Issue rendered moot because subsequent Deschutes County convictions produced a 36‑month PPS that will subsume the earlier PPS term, so no practical effect; court declined to decide on merits

State v. King, 307 Or. 332 (standard for reviewing denial of judgment of acquittal)
State v. Kirkland, 241 Or. App. 40 (same standard applied)
State v. Scott, 38 Or. App. 465 (boxcar not a structure adapted for carrying on a business in that case)
State v. Nollen, 196 Or. App. 141 (trailer adapted into a donation collection station — treated as carrying on a business)
Apprendi v. New Jersey, 530 U.S. 466 (principle that facts increasing penalty must be found by a jury)
State v. Mallory, 213 Or. App. 392 (Apprendi application in Oregon sentencing context)
State v. Burns, 259 Or. App. 410 (separate-episode factual finding requirement for sentencing enhancements)
State v. Yashin, 199 Or. App. 511 (discussion of ‘‘continuous and uninterrupted conduct’’ test for separate episodes)