Dеfendant was convicted of one count of burglary in the second degree, ORS 164.215, after he walked through the unlocked front door of the Albany Tennis Club (the club) and stole items from a purse that had been left in the women’s locker room. On appeal, defendant makes two assignments of error. First, he argues that the trial court erroneously deniеd his motion for a judgment of acquittal because the state failed to prove that the club was “not open to the public.” Second, defendant argues that the trial court plainly erred when it instructed the jury on the elements of the crime of second-degree burglary. We reject defendant’s first assignment of error and decline to exercise our discretion to correct his second assignment of error. We, therefore, affirm.
Because defendant appeals the denial of his motion for a judgment of acquittal, we review the evidence in the light most favorable to the state. State v. Cervantes,
Once inside the club, a visitor would see a desk up against the right-hand wall. The desk is not staffed by a person. A computer and a notebook used to reserve tennis courts would be sitting on the desk. To the left, a stairway leads up to a viewing area that overlooks the tennis courts. A short hallway leads to a gray door marked “Exit.” Down that hallway on the left-hand side are the doors to the men’s and women’s locker rooms.
The main door to the building is usually locked. An electronic card reader allows members to unlock the
On January 10, 2012, the door was unlocked from approximately 2:45 p.m. to 5:00 p.m. to allow access to a nonmember parent of a child who was taking junior tennis lessons. The parent had called ahead to obtain permission to enter. At approximately 3:00 p.m., one of the club’s members, Dwier, arrived at the club for a tennis lesson. Dwier left some personal belongings, including her purse, in the women’s locker room. After returning from her lesson, Dwier discovered that her purse was missing from the locker room.
Dwier’s purse was later spotted lying in the street near the club. Several items were missing. Police arrived and reviewed the club’s video surveillance footage from that afternoon. The video showed that defendant, wearing a brown jacket, had walked through the front door, down the hallway towards the locker rooms, and then walked out the front door. The video did not show defendant carrying a purse. Defendant is not a member of the club and did not ask permission to enter the building.
Several weeks later, police encountered and arrested defendant. Defendant was wearing the brown jacket frоm the video.
Defendant was charged with one count of burglary in the second degree, ORS 164.215, and one count of theft in the second degree, ORS 164.045. With respect to the burglary charge, the original indictment alleged that “defendant *** did unlawfully and knowingly enter and remain in a room with restricted access (women’s locker room) in a building with restricted acсess (Albany Tennis Club) * * * with the intent to commit the crime of theft therein [.]” On defendant’s motion, the trial court struck the phrase referring to the women’s locker room from the indictment.
The trial cоurt instructed the jury on the crime of second-degree burglary as follows:
“Oregon law provides that a person commits the crime of Burglary in the Second Degree if the person enters or remains unlawfully in a building with the intent to commit a crime therein. * * *
“To ‘enter or remain unlawfully’ is defined as to enter or remain in or on the premises when the premisеs at the time of such entry or remaining are not open to the public, or when the entrant is not otherwise licensed or privileged to do so.”
Defendant did not object to that jury instruction. The jury convicted defendant of the burglary count and acquitted him of the theft count.
On appeal, defendant reprises his argument that a judgment of acquittal was required because the state failed to establish that the club was “not open to the public” at the time that defendant entered the building. Alternatively, defendant argues that the trial court committed plain error when it instructed the jury on the definition of to “enter or remain unlawfully.”
When reviewing a motion for a judgment of acquittal, “the relevant question is ‘whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Mejia,
Defendant’s first assignment of error asks us to conclude that, based on the evidence at trial, no rational juror could have found that the club was “not open to the public.” Premises are “[o]pen to the public” when “their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required.” ORS 164.205(4). That standard is an objective one. As we explained in State v. Hinton,
“the premisеs must in some way — physically or as a matter of custom or through ‘other circumstances’ — objectively cause a reasonable person to believe that he or she is free to enter or remain on the property without permission, even if subjectively the owner intends the property to be private and requires permission tо be there.”
For example, in State v. Pittman,
In reaching that conclusion, we observed that the state had produced evidence that “the intended clientele of the business was retail florists [.]” Id. at 600. That evidence included “[t]he business name and exterior sign stat [ing] that the business is ‘wholesale’” and the fact that, “[t]he business was located in a warehouse-type building.” Id. (internal quotation marks omitted). We reasoned, however, that those factors alone “would not lead a person to believe that only retail florists were allowed to enter.” Id. That is, “[t]he nature of the business would not inhibit the entry of delivery pеrsons, job applicants, salespeople, or persons curious about flowers.” Id.
We also noted that other evidence objectively suggested that the business was open to the public. No signs indicated that permission to enter was required, and entry into the building was not physically restricted in any way. Id. Moreover, the front area of thе business was arranged much like a retail business with a “front counter area,” a “cashier on duty,” and “ [¶] lowers and supplies” being displayed for sale. Id. For all of those reasons, we concluded that the trial court erred by not granting defendant’s motion for a judgment of acquittal. Id. at 600-01.
A more recent burglary case involved the defendant’s entry into the оffice suite of Alternative Work Concepts (AWC), an organization that works with people with disabilities. Davis,
“[n] either the door nor the walls adjacent to it contained windows or signs indicating that the office was open to the public. Upon entering the office suite, there is no reception or customer service desk or signs signaling to people that AWC provided services to the general public. Rather, one sees a common area containing a file cabinet and a fax machine and a table with break-room equipment and supplies.”
In this case, we conclude that a rational fact-finder could have found that the club was “not open to the public.” The record indicates that the club is more like the office suite in Davis than the floral wholesale business in Pittman. The only fact that tends to support defendant’s argument that the club was open to the public is that the main door happened to be unloсked at the time that defendant opened it. Other facts support the conclusion that access was restricted. These include the electronic card reader next to the door; the various signs referring to “members” and “membership”; and the name of the facility itself. Those factors support a conclusion that the club’s “physiсal nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe” that the general public did not have unfettered access. ORS 164.205(4).
Defendant argues that, even if club access was generally restricted to members, “a potential new member to the club would clearly be permitted to enter du ring business hours and inquire about a membership.” Defendant’s position find some support from Pittman, where we noted that a sign indicating that a business is “wholesale” would “not inhibit the entry of delivery persons, job applicants, salespeople, or persons curious about flowers.”
We now turn to defendant’s second assignment of error. Defendant argues that the trial court plainly erred when it instructed the jury on the definition of to “enter or remain unlawfully.” Agаin, that instruction provided:
“To ‘enter or remain unlawfully’ is defined as to enter or remain in or on the premises when the premises at the time of such entry or remaining are not open to the public, or when the entrant is not otherwise licensed or privileged to do so.”
(Emphasis added.) According to defendant, that instruction was an incorrect statement of the law because, as noted above, the Supreme Court has construed the elements in ORS 164.205(3)(a) in the conjunctive; that is, the state must prove both that the premises were not open to the public and that the entrant was not otherwise licensed or privileged to be there. Davis,
We may exercise our discretion to review an unpreserved error if (1) it is an error of law; (2) “the legal point is obvious, not reasonably in dispute” and (3) the error appears “on the face of the record.” State v. Brown,
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular cаse; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an opportunity to correct any error.”
Ailes,
Despite that general rule, there was a good argument to be made that the trial court’s instruction was incorrect and potentially confusing in light of our decision in Collins,
Affirmed.
Notes
That ruling is not at issue on appeal.
The parties also present arguments as to whether ORCP 59 H precludes us from reviewing defendant’s second assignment of error. After the parties briefed this case, however, the Supreme Court decided State v. Vanornum,