State v. Eaton

602 P.2d 1159, 43 Or. App. 469, 1979 Ore. App. LEXIS 3401

• Court: Court of Appeals of Oregon
• Decided: November 26, 1979
• Docket: 18-602, CA 13072
• Status: Published

Opinion

CAMPBELL, J.

Defendant appeals from his conviction, after trial >y jury, of burglary in the first degree, ORS 164.225. [he sole question on appeal is whether the building vhich he entered unlawfully is a "dwelling” within the neaning of ORS 164.205(2). 1 We hold that it is not and everse and remand for entry of conviction of burglary n the second degree.

The information of the district attorney charged efendant with unlawfully and knowingly entering md remaining in a dwelling in the Jesuit Church lamp near Pacific City, with the intent to commit heft, on or about November 17, 1976. 2

The two-story building involved is lived in for an ight-week period each summer by Jesuit students tudying for the priesthood. It is undisputed that the uilding was vacated by the students in August 1976. Vhen people associated with the camp first returned tie following May, they noticed several items missing. Subsequently, those items were found in defendant’s ossession, leading to his conviction.

ORS 164.225 provides in pertinent part:

"(1) A person commits the crime of burglary in the first degree if he violates ORS 164.215 and the building is a dwelling * * * ”

ORS 164.215 provides:

"(1) A person commits the crime of burglary in the second degree if he enters or remains unlawfully in a building with intent to commit a crime therein.”

"Dwelling” is defined by ORS 164.205(2) as "a uilding which regularly or intermittently is occupied y a person lodging therein at night, whether or not a arson is actually present.”

Where an eight-week period of occupancy is followed by 44 weeks of vacancy, and where the burglary occurred months after the last occupant left, we conclude that the structure is not occupied "regularly or intermittently.”

Reversed and remanded for entry of conviction of burglary in the second degree and for resentencing.

1 Defendant acknowledges that he did not raise this issue at trial by ay of motion for judgment of acquittal. Under 7.19, Rules of Procedure of e Oregon Supreme Court and Court of Appeals, we may exercise our scretion to take notice of errors of law apparent on the face of the record, e do so in this case.

2 The prosecution conceded that the date was conjectural.