Dеfendant appeals a judgment of conviction for burglary in the second degree, ORS 164.215, based on his theft of a lockbox containing checks, receipts, and cash from a toy store storage room. Defendant assigns error to thе trial court’s denial of his motion for judgment of acquittal, asserting that the state failed to prove that defendant entered or remained unlawfully in a building within the meaning of ORS 164.205. We affirm.
The relevant facts are undisputed. Defendant entered a store called Toy Bliss during business hours, where he was greeted by a store manager, Boston. Boston asked defendant
Boston then saw defendant walk rapidly toward the front of the store, hunched over a large bulge under his jacket. Boston followed defendant and asked him tо stop, but he left through the front door. Boston later realized that the store’s lockbox was missing from the storage room; the box had contained more than $750 in cash, store receipts, and customer checks. She also discovered that the exterior door to the storage room was unlocked, although it had been locked when she opened the store that morning.
Defendant was charged with burglary in the second degree. 1 A person commits the crime of burglary in the second degree if the person enters or remаins unlawfully in a building with intent to commit a crime therein. ORS 164.215(1). After the trial court instructed the jury, defendant moved for a judgment of acquittal on the burglary charge, arguing that the state had failed to establish that defendant entered or remained unlawfully in the toy stоre. Defendant argued that the toy store was open to the public and that he had neither entered nor remained unlawfully in that building. See ORS 164.205(3) (to “enter or remain unlawfully” means, among other things, “(a) [t]o enter or remain in or upon 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” or “(b) [t]o fail to leave premises that are open to the public after bеing lawfully directed to do so by the person in charge”). In effect, defendant argued that the storage room was not a separate building and his entry into that part of the toy store — whether the storage room itself was open to thе public or not — could not support a burglary conviction. The trial court denied defendant’s motion and concluded that it was a question for the jury whether the storage room was open to the public and whether defendant remаined unlawfully in the toy store. The trial court did not address the question of whether the storage room was a separate building.
On appeal, defendant argues that the trial court erred in denying his motion for two related reasons. First, defendant argues that the storage room was not a separate building under the burglary statutes and that the relevant “building” for purposes of his entry or remaining was the toy store as a whole. Second, assuming that to be the case, defendant cоntends that neither his presence inside the storage room nor his criminal intent were sufficient to revoke his license to be in the toy store generally. The state, meanwhile, responds that the trial court did not err, because the evidence sufficiently supported defendant’s burglary conviction under either of two theories presented by the jury instructions: (1) entering the storage room, a “separate unit” within a building, with criminal intent; or (2) remaining in the toy store after losing the privilege to be there.
“We review a trial court’s denial of a defendant’s motion for judgment of acquittal to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the еlements of the
charged crime beyond a reasonable doubt.”
State v. Vargas-Torres,
Defendant’s arguments that the storage room was not itself a separate building under the burglary statutes and that defendant did not enter or remain unlawfully in the toy store as a whоle raise questions of statutory interpretation. Applying the interpretive
We begin with the text of ORS 164.215(1), which criminalizes the act of “enter[ing] or remaining] unlawfully in a building with the intent to commit a crime therein.” The statutory construction question presented in this case requires a two-step analysis. First, we must identify thе “building” at issue in this case — the toy store as a whole or the storage room in particular. Second, we must determine whether a jury could find from the evidence presented that defendant entered or remained unlawfully in the building at issue.
We turn, then, first to the question whether the storage room was a separate building under the burglary statutes. ORS 164.205(1) defines the term “building”:
“ ‘Building,’ in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or other structure adapted for overnight acсommodation of persons or for carrying on business therein. Where a building consists of separate units, including, but not limited to, separate apartments, offices or rented rooms, each unit is, in addition to being a part of such building, a seрarate building.”
We have recognized that the ordinary meaning of “building” includes free-standing structures used for storage.
State v. Barker / Phelps,
“1: a thing built: a : a constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and morе or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure — distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy b : a portion of a house occupied as a separate dwelling : APARTMENT, TENEMENT — used only in some legal statutes * *
That plain meaning of the tеrm “building” does not encompass the toy store’s storage room, which is a part of the toy store building and is not a free-standing structure or a portion of a house occupied as a separate dwelling.
That is not the end of the inquiry, thоugh, because ORS 164.205(1) expands the meaning of “building” beyond its “ordinary meaning.” The second sentence of the statutory definition, once again, provides that, “[w]here a building consists of separate units, including, but not limited to, separate apartments, offices or rented rooms, each unit is, in addition to being a part of such building, a separate building.” (Emphasis added.)
A “unit,” in this context, refers to something that is “a constituent and isolable member of some more inclusive whole.”
Webster’s
at 2500. Consistently with that ordinary meaning, and the “common characteristics” of the nonexclusive examples of “separate units” listed in the statute,
see State v. Kurtz,
In
Barker /Phelps,
for example, we held that storage units in a commercial storage facility, each locked and rented by separate owners, constituted separate buildings under thе burglary statutes.
Id.
at 398. Similarly, in
Handley,
we held that locked storage lockers in the carport of an apartment complex, each rented by different tenants of the apartment complex, were separate buildings within the meaning of ORS 164.205(1).
In
Jenkins,
the issue was whether the area behind the bar of a tavern was a separate building. We relied on the rule in
Barker /Phelps
that “separate units within larger buildings are separate buildings [for purposes of our burglary statutes] when each is ‘self-contained.’ ”
Jenkins,
Here, unlike the bar area in Jenkins, the storage room of the toy store was a self-contained unit of the building with separate physical access (a camouflaged door), separate oсcupation (employees only), and separate function (storage and holding money rather than merchandising). Viewing that evidence of the storage room’s characteristics in the light most favorable to the state, we conclude that the state presented sufficient evidence that the storage room was a “separate unit” of the toy store and, therefore, a separate building for purposes of ORS 164.205(1).
Thus, the only remaining question is whether the statе presented sufficient evidence that defendant unlawfully entered or remained in the storage room itself. See ORS 164.205(3)(a) (to “enter or remain unlawfully” means “(a) [t]o enter or remain in or upon premises when the premises, at the time of such еntry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so”); ORS 164.205(4) (“ ‘Open to the public’ means premises which by their physical nature, function, custom, usage, notice or lack thеreof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required.”). And, on that point, defendant offers no argument; that is, he does not argue thаt the storage room (as opposed to the toy store) was open to the public or that he was licensed or privileged to enter the storage room. The trial court did not err in denying his motion for a judgment of acquittal. 3
Affirmed.
Notes
Defendant was also charged with and convicted of first-degree theft. That conviction is not at issue on appeal.
In
Peña,
we considered whether rented rooms in a house constituted separate units, but we did not resolve that issue, becаuse the state presented no evidence that the defendant in that case had entered the room with the intent to commit a crime “therein.”
Because we conclude that defendant entered the storage room unlawfully, we need not address the parties’ arguments regarding whether defendant remained unlawfully.