State v. Endicott

439 P.3d 510, 296 Or. App. 644
CourtCourt of Appeals of Oregon
DecidedMarch 20, 2019
DocketA157816
StatusPublished
Cited by2 cases

This text of 439 P.3d 510 (State v. Endicott) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Endicott, 439 P.3d 510, 296 Or. App. 644 (Or. Ct. App. 2019).

Opinion

TOOKEY, J.

*645Defendant appeals a judgment of conviction for, among other offenses, one count of first-degree burglary. ORS 164.225 ; ORS 164.215. On appeal, in his first assignment of error, defendant challenges the trial court's denial of his motion for a judgment of acquittal *512(MJOA) on the burglary counts that were subsequently merged into a single conviction.1 Defendant contends that he had "license" to enter and remain in the dwelling in which the jury found he intended to commit crimes. The state contends that, because defendant exceeded the scope of his license or privilege to enter and remain in the dwelling by bringing a person into the dwelling that defendant was not authorized to bring with him, his entry and remaining was not licensed or privileged and, consequently, was unlawful. For the reasons set forth below, we conclude that a rational trier of fact could have found beyond a reasonable doubt that defendant's entry and remaining was unlawful. Accordingly, we affirm.

When we review 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 P.3d 1104, rev. den. , 361 Or. 543, 397 P.3d 35 (2017). We state the facts consistently with that standard.

Sorenson rented an apartment in Glide, Oregon. At the time of the burglary in this case, Sorenson was allowing a married couple, ZM (the husband) and KM (the wife), to stay with him at the apartment. In the months leading up to the burglary, KM had been "involved in a check fraud identity theft charge," and had identified three other individuals-at least two of whom were friends of defendant-to police as having also been involved in that conduct.

Sorenson was also friends with defendant. In fact, Sorenson had given defendant "full access" to his apartment, which meant that, according to Sorenson, it "wasn't abnormal for [defendant] to be waiting for [Sorenson] inside [Sorenson's apartment] when [Sorenson] got off work." The access that Sorenson had given to defendant to enter and remain in Sorenson's apartment did not, however, include *646defendant bringing another individual, Finnell, with him. Specifically, during defendant's trial, Sorenson provided the following testimony:

"[Deputy District Attorney]: When you testified that you gave [defendant] permission to go to and from your house, that did not include bringing Mr. Finnell with him?
"[Sorenson]: No, it did not."

Sorenson also testified during defendant's trial that, unlike defendant, Finnell was not "okay to go and come" from Sorenson's apartment and was not allowed in Sorenson's apartment. Sorenson explained that "every time I hang out with [Finnell] my chances of going to jail go[ ] up three hundred percent" and that Finnell had previously attacked Sorenson on Sorenson's porch.

Defendant and Finnell were friends. However, during defendant's trial, defendant provided the following testimony regarding his view of Finnell's disposition:

"[Deputy District Attorney]: You explained that you've known * * * Finnell since first grade. You described him as wayward, flighty, you have a soft spot for him. Was he ever violent? Did you ever know him to be violent?
"[Defendant]: To say the least.
"[Deputy District Attorney]: I don't understand what that means. Yes, you did know him to be violent?
"[Defendant]: * * * Finnell has always been kind of violent.
"[Deputy District Attorney]: Would you characterize him as unpredictable?
"[Defendant]: I'm sure most people would. I wouldn't characterize him as unpredictable.
"[Deputy District Attorney]: How would you characterize him?
"[Defendant]: At times a loose cannon, more or less. Unstable."

Additionally, defendant testified during his trial that Sorenson's former romantic partner and Finnell had been "kind of promiscuous together," and that had, at some point, caused tension between Sorenson and Finnell.

*647Prior to the burglary, defendant and Finnell were drinking together at defendant's house. That day, Finnell was "under the influence of a lot of alcohol and a lot of drugs." During defendant's trial, Finnell testified *513about himself that he was using drugs and was high that day because he is "always on drugs and high. And usually drunk." Later that day, defendant brought Finnell to Sorenson's apartment.

When they arrived at the apartment, KM was sleeping on the couch. Neither Sorenson nor ZM were present. KM awoke to people talking and saw defendant and Finnell in the apartment with her. The door to Sorenson's apartment did not "really lock" and they had, apparently, let themselves in. Defendant "started to tell [KM] that there were these people [who] were trying to hurt his family, hurt his wife, and that [he] needed * * * [ZM's] help." KM then left the apartment to go to a neighbor's house to try to find a phone so that she could call ZM. While she was searching for someone with a phone, ZM returned to Sorenson's apartment. Upon seeing ZM return, KM returned as well.

Defendant and Finnell then told ZM that someone was threatening defendant and was going to kill defendant's wife. Defendant requested that ZM come with him and Finnell to defendant's house. The story defendant and Finnell were telling, however, was not adding up to ZM, and ZM began to question defendant and Finnell.

When it became clear that ZM was not going to go with defendant and Finnell voluntarily, defendant punched him in the face, knocking him to the ground. Defendant then climbed on top of ZM, pulled out a knife, and began "yelling a bunch of stuff," such as "[y]ou narked us out," "[y]ou shouldn't tell on us," and "[w]e should kill you. You're dead." While this was occurring, Finnell restrained KM.

When ZM struggled to escape, Finnell ran over to assist defendant and began to put handcuffs on ZM. At that point, KM was able to flee. She left the apartment, stopped a passing semi-truck, and contacted law enforcement.

Subsequently, defendant was arrested and charged with, among other crimes, three counts of first-degree *648

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Related

State v. Baker
556 P.3d 17 (Court of Appeals of Oregon, 2024)
State v. McLaughlin
505 P.3d 1088 (Court of Appeals of Oregon, 2022)

Cite This Page — Counsel Stack

Bluebook (online)
439 P.3d 510, 296 Or. App. 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-endicott-orctapp-2019.