STATE OF OREGON, Plaintiff-Respondent, v. MAYNOR PEREZ-SALAS, Defendant-Appellant.
Washington County Circuit Court 17CR80432; A167794
Oregon Court of Appeals
June 30, 2021
October 10, 2021
312 Or App 693; 492 P3d 95
Submitted December 10, 2019, affirmed June 30, petition for review denied October 10, 2021 (368 Or 638)
Defendant appeals a judgment of conviction for first-degree burglary and second-degree criminal mischief. The charges were based on an incident in which defendant broke into his sister‘s lоcked bedroom and damaged some of her clothing; the two lived in a house rented from their uncle. Defendant assigns error to the trial court‘s denial of his motion for judgment of acquittal (MJOA) on the burglary charge, contending that the bedroom is not a separate “building” for purposes of the burglary statute and, therefore, the evidence was insufficient to convict him of that charge. Held: The evidence was sufficient to establish that the bedroom is a “building” within the meaning of the burglary statutes where defendant‘s sister paid rent directly to her uncle to live there, without regard to defendant‘s rent obligation; the bedroom was a separately secured, self-contained physical space; the sister was the exclusive occupant of the bedroom and defendant had no access to it; and the bedroom did not function as a component part of a building with a single unifying purpose, such as a family residence.
Affirmed.
James Lee Fun, Jr, Judge.
Ernest G. Lаnnet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
DeHOOG, J.
Affirmed.
DeHOOG, J.
Defendant was convicted of first-degree burglary,
To provide context for the dispute, we begin with the applicable statutes. As relevant here, a person commits first-degree burglary, a Class A felony, “if the person violates
“(1) ‘Building,’ in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation 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 separate building.
“(2) ‘Dwelling’ means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.”
(Emphasis added.)
In rеviewing a trial court‘s denial of an MJOA, we view the evidence in the light most favorable to the state. State v. Rodriguez, 283 Or App 536, 537, 390 P3d 1104, rev den, 361 Or 543 (2017). We state the facts in that light.
Defendant and his sister, B, lived in a two-bedroom house that their uncle leased and then rented to them under an informal agreement. The uncle also used the property for parking his cars and equipment for his landscaping business. The rent amount was shared between defendant, B, and the uncle.1 B paid her portion of the rent directly to her uncle. The uncle and/or defendant‘s mother paid defendant‘s share.2 The uncle then paid the total amount to his landlord each month. Defendant and B were responsible for utilities.
Defendant and B shared common areas of the house, but they each had their own individual bedroom. The two had a difficult relationship. B‘s bedroom had a lock on it, which she used, and defendant did not have a key. Defendant was not permitted in B‘s bedroom at any time. At trial, B testified, “My room is my room, his room is his roоm.” She also stated, “I never let [defendant] in my room. He can never be in my room. He‘s never allowed to be in my room, ever.” When asked if she had made that clear to defendant, she testified, “He knows it a hundred percent.” The siblings’ uncle, who rented them the rooms, also testified that the bedrooms were meаnt to be separate.
One day, B came home and discovered that her locked bedroom had been broken into and there was bleach on some of her clothing items. Defendant admitted to officers that he had kicked in the door and sprayed bleach on B‘s clothing.
Defendant waived his right to a jury trial and tried his case to the court. At the close of
“[T]he question is whether or not there are either rooms or locations within that dwelling that can be identified through the facts as separate living spaces, because the character of the structure is still a dwelling.
“In this case, like other common circumstances, there are individual rooms that the occupants of the dwelling identified as their own particular living space or dwelling.
“In this case there is no doubt that the parties lived as though rooms were individualized units, private units, and they had an expectation of privacy in those individual rooms. No dispute on the evidence. The еvidence is quite clear on that.
“Moreover, the circumstantial evidence would suggest that that‘s what the parties intended. The fact that [B] locked the door, there were no items of clothing, physical possessions, or any other items that the defendant possessed that were in [B‘s] room, and that he gаined access to her room, allegedly, by forcing the door open, breaking the doorjamb, would indicate clearly that the parties treated the individual rooms with an expectation of privacy.”
The court denied defendant‘s MJOA “for all those reasons.”
The trial court ultimately found defendant guilty of first-degree burglary and second-degree criminal mischief. Defendant appeals, assigning error, as noted, to the denial of his MJOA.
On appeal, defendant repeats his contention that a single-family home that is maintained as such is a single building and that each bedroom is not a separate dwelling under the burglary statutes. He also advances a second thеory, one not presented to the trial court, that, because B was not the owner of the property, she could not “unilateral[ly],” by locking her bedroom door, convert the house into a multiple dwelling unit.
The state responds, as it did at trial, that B‘s bedroom was a “rented room,” qualifying as a separatе unit or building under the burglary statutes, see
to B, that she always kept the door locked, and that only B had physical access to the room. We agree with the state.4
So framed, the question presented by this appeal is whether a reasonable factfinder could find that B‘s bedroom was a separate unit and, therefore, a separate building, such that defendant committed first-degree burglary when he entered or remained in the bedroom with the intent to commit a crime therein—specifically, second-degree criminal mischief. That, in turn, depends on the proper construction of the word “building,” which we review for legal error. Rodriguez, 283 Or App at 540-41 (“When a trial court‘s denial of a defendant‘s motion for a judgment of acquittal depends on its interpretation of the statute defining the offense, we review the trial court‘s interpretation for legal error.” (Internal quotation marks omitted.)).
As the рarties recognize, our prior decisions—in particular, Rodriguez—guide the answer in this case. See State v. Gonzalez-Aguillar, 287 Or App 410, 412, 403 P3d 539 (2017) (“If we have previously construed a statute, and that construction controls the interpretive question on appeal, we adhere to
Specifically, we held (somewhat obviously given the legislature‘s express definition) that “individuаl apartments and separately rented rooms” are considered to be separate buildings. Id. at 541 (citing
We also determined, based on our case law interpreting the term, that a significant factor in the determination is whether the area is “‘self-contained from its parent building, including secure physical access, separate function, and separate occupation.‘” Rodriguez, 283 Or App at 541-42 (quoting State v Macon, 249 Or App 260, 264, 278 P3d 29, rev den, 352 Or 342 (2012)); see Macon, 249 Or App at 265-66 (storage room of a toy store was separate unit from the store because it had separate physical access, separate occupancy by employees only, аnd a separate function from the rest of the store)). We contrasted Macon with State v. Jenkins, 157 Or App 156, 969 P2d 1048 (1998), in which we had determined that the area behind the bar in a tavern was not a separate building, in part, because of the unsecured physical access to the area, but also because the function of the bar is “encompassed by, and inseparable from, the purpose of the tavern.” Rodriguez, 283 Or App at 542-43 (quoting Jenkins, 157 Or App at 160).
Applying those principles to the facts in Rodriguez, we concluded that the evidence was insufficient to support a finding that the parents’ bedroom was a separate unit from the rest of the house. That was so because (1) there was no evidence that any rooms in the hоuse “were ‘rented rooms’ or treated by the family as separate apartments,” id. at 541; (2) the function of the parents’ bedroom was “inseparable” from the overall function of the house as a family residence, id. at 543; (3) occupation of the bedroom was not exclusive to defendant‘s parents—dеfendant had permission to enter the bedroom at certain times, and the door to the bedroom
was left open when his father was home, id. In those circumstances, the fact that there was a lock on the bedroom door did not itself “change the nature or function of the bedroom so that it became a self-contained, sepаrate unit from the rest of the house.” Id.
The circumstances in the present case are markedly distinct from Rodriguez. In this case, B paid rent to live in the house, and she separately paid her portion of the rent directly to her uncle, without regard to defendant‘s rent obligation. Her bedroom was a separаtely secured, self-contained, physical space, and, unlike in Rodriguez, its occupation was exclusive to her. B kept the door to the bedroom locked and defendant knew “a hundred percent” that he did not have permission to enter it at any time. In
There is also nothing in the record to indicate that the house itself generally functioned as a “family residence,” of which B‘s bedroom was simply a component, as in Rodriguez. Rather, a reasonable inference from the evidence is that, although they shared some common areas, defendant and B lived in the house independently. Put another way, they coexisted in the house, but there is no evidence that the twо shared a “home,” akin to a family residence, with a single unifying purpose. Considered in the light most favorable to the state, a reasonable factfinder could find from this record that B‘s rented bedroom was self-contained, with “secure physical access, separate function, and separatе occupation” from the rest of the house. See Rodriguez, 283 Or App at 542 (internal quotation marks omitted); id. at 542-43 (identifying the same as inherent in the meaning of “building” under
We disagree with defendant‘s suggestion that a bedroom in a building “maintained” as a “single-family home” can never be a separate building. As Rodriguez and our other case law makes clear, the gravamen of the inquiry is, instead, whether the room is separate in function and
purpose from the parent building, such that it “is, in addition to being a part of such building, a separate building.”
Given the specific circumstances present here, a reasonable factfinder cоuld find that B‘s rented bedroom was a “building” for purposes of the burglary statutes. Because defendant does not dispute that if the bedroom was a building, it was also a dwelling, the evidence was thus sufficient to support defendant‘s conviction for first-degree burglary. The court did not err in denying defendant‘s MJOA.
Affirmed.