STATE OF OREGON, Plaintiff-Respondent, v. DANIEL JOSEPH WEBB, Defendant-Appellant.
Grant County Circuit Court 1009290CR; A147650
Oregon Court of Appeals
Argued and submitted February 19, 2013, affirmed April 2, 2014
324 P.3d 522 | 262 Or App 1 (2014)
Mark Gardner, Senior Judge.
Affirmed.
Mark Gardner, Senior Judge.
Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. On the briefs were Peter Gartlan, Chief Defender, and Erin Snyder, Deputy Public Defender, Office of Public Defense Services.
Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
WOLLHEIM, J.
Affirmed.
Defendant appeals a judgment of conviction for one count of second-degree burglary (Count 3) and two counts of first-degree theft (Counts 2 and 5), arguing that the trial court erred in denying his motion for judgment of acquittal on the burglary conviction and in sentencing him as a repeat property offender on Count 5 under
In reviewing the denial of a motion for judgment of acquittal, we state the facts in the light most favorable to the state to determine whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. King, 307 Or 332, 339, 768 P2d 391 (1989); State v. Kirkland, 241 Or App 40, 249 P3d 554 (2011).
On April 18, 2010, defendant and a companion broke into and stole a number of items from a tractor trailer owned and being used by the victim to store inventory for his military surplus retail business located in an adjacent building. That same day, defendant and his companion broke into and stole items from a U-Haul trailer owned by a different victim.
Defendant was charged with a number of offenses. He was ultimately convicted of two counts of first-degree theft (Counts 2 and 5),
Defendant was sentenced on Counts 2 and 3 to two years of supervised probation. On Count 5, the court sentenced defendant to 13 months’ imprisonment and one year of post-prison supervision under
A person commits the offense of second-degree burglary if the person “enters or remains unlawfully in a building
In his first assignment of error, defendant contends that the trial court erred in denying his motion for a judgment of acquittal on the burglary charge, asserting that the state failed to put on sufficient evidence from which it could be found that the tractor trailer was a “building” within the definition provided by
Defendant acknowledges that the statutory definition of “building” includes vehicles or other structures “adapted * * * for carrying on business.”
For additional support, defendant cites our opinion in State v. Scott, 38 Or App 465, 590 P2d 743 (1979), in which we cited the Commentary and held that the railroad boxcar involved in that case was not a “structure adapted for carrying on a business therein.” Id. at 467-68. In Scott, we noted the Commentary’s explanation that
“the purpose of [the] expansive definition of building is ‘to include those structures and vehicles which typically contain human beings for extended periods of time, in accordance with the original and basic rationale of the crime: protection against invasion of premises likely to terrorize occupants.’”
38 Or App at 467. Our opinion in Scott did not describe the facts of that case, other than to note that it involved the burglary of a railroad boxcar. Id. In overturning the defendant’s conviction, we said that, although “[i]t is conceivable that a boxcar may be adapted” for carrying on a business, there was “no evidence that [the particular] boxcar * * * was so adapted or that it was anything other than a structure on wheels designed for storage of goods during their transportation.” Id. at 467-68. In defendant’s view, Scott stands for the proposition that a vehicle or other structure will be considered adapted for a business when it is designed not merely for storage but specifically to contain human beings for extended periods of time.
Defendant cites this court’s opinion in State v. Nollen, 196 Or App 141, 100 P3d 788 (2004), as an example of an application of that principle. Nollen involved the theft of items from a St. Vincent de Paul semi-truck trailer that served as a donation drop-off site. Id. at 143. When filled, the trailer would be attached to a tractor and transported to a transfer station. Id. In upholding the defendant’s burglary conviction, we explained that, by being detached from its tractor, by remaining in place for some period of time, by having stairs next to it, and by having permanent signs nearby advertising it as a donation collection station, the
In defendant’s view, Nollen represents a correct application of the policy expressed in the Commentary, because the tractor trailer in Nollen included modifications that invited the public to its interior. In contrast, defendant contends, the trailer that defendant broke into did not include adaptations inviting public access and therefore was not a building. Respectfully, defendant places undue emphasis on a single fact. The court in Nollen focused on adaptations that converted the trailer from a container for transporting goods to a donation station for the business of St. Vincent de Paul. That there were stairs allowing the public to drop off donations was just one fact. Id. The point was that adaptations had been made to the trailer to transform it from a container used to transport items to a donation station. Id.
The undisputed facts in this case show that even greater adaptations had been made to the trailer here than to the trailer in Nollen. The trailer was not hooked to a tractor; it had been stationary for 18 years; and it was used for storage of inventory and business records, an integral component of the victim’s retail business. Certainly, a modification that creates access to the public could be relevant in determining whether a vehicle or other structure has been adapted for carrying on a business, but it is not required or dispositive. Whether a vehicle or other structure has been adapted for carrying on a business will depend on the circumstances, including the nature of the business and the adaptations. In this case, the undisputed evidence requires the conclusion that, not only had the trailer been adapted to the victim’s business purpose to store inventory and records, it was also used for that purpose. We conclude that the evidence is sufficient to support a finding that defendant unlawfully entered a “building,” as that term is defined in
In his second assignment, citing Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and State v. Mallory, 213 Or App 392, 162 P3d 297 (2007),
The state brings to our attention that this assignment of error is moot. At the time of oral argument, the parties agreed that, although defendant had been released from prison, the case was not moot because he was serving a 12-month post-prison supervision (PPS) term on Count 5. Later, the state informed the court that defendant had subsequently been convicted of two burglaries in Deschutes County, with a 36-month term of PPS imposed for each offense. When defendant is released from prison, all of his existing PPS terms will merge into a single term, and any sanction for a violation of PPS will be limited to the sanction for a single PPS term. See
Affirmed.