State v. Evans

341 P.3d 833, 267 Or. App. 762, 2014 Ore. App. LEXIS 1780
CourtCourt of Appeals of Oregon
DecidedDecember 24, 2014
Docket110833166, 111034382; A151457, A151458
StatusPublished
Cited by3 cases

This text of 341 P.3d 833 (State v. Evans) 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. Evans, 341 P.3d 833, 267 Or. App. 762, 2014 Ore. App. LEXIS 1780 (Or. Ct. App. 2014).

Opinion

DEVORE, P. J.

Defendant appeals a judgment of conviction for first-degree burglary, ORS 164.225, assigning error to the trial court’s denial of his motion for a judgment of acquittal. He argues that the state failed to prove that he was not licensed or privileged to be in the victim’s apartment at the time that he stole her purse and that the state did not prove that defendant had lost his license or privilege to remain in the victim’s apartment. We view the evidence in the light most favorable to the state to determine whether a rational factfinder could find that the state had proved every element of the offense beyond a reasonable doubt. State v. Cervantes, 319 Or 121, 125, 873 P2d 316 (1994). We conclude that defendant exceeded the express limits of the license to be in the victim’s apartment, and we affirm.

The facts are undisputed. The victim, who has a physical disability, was sitting outside of her apartment visiting with a friend. She learned “that [defendant] was helping the neighbor across from [her] move furniture and stuff.” She had never seen defendant before. The neighbor left for an hour or two while defendant stayed behind. He lingered between the victim’s and the neighbor’s apartments and eventually asked if he could use the victim’s bathroom. Believing that defendant was her neighbor’s friend, the victim said, “Yes, you can go,” and she told defendant where to find the bathroom. Defendant entered the victim’s two-bedroom apartment while she continued sitting outside, next to her front door, speaking with her friend. After talking for a while, the victim realized that it was “taking [defendant] a long time” and “got kind of worried.”

To get to the bathroom, a person would enter the apartment through the front door, take two small steps to the left, “go right down the hallway,” and go into the bathroom on the right. The door to the bathroom was removed so that the victim could easily access the facilities. Her bed and nightstand, which were in the front room of her apartment, were visible from the front entryway. A wall separated the bathroom from the area where her bed and nightstand were located. The victim did not hear the toilet flush, and she believed that she would have been able to hear a flush [764]*764because the front door had remained open while defendant was in the apartment. She expected that defendant would only be present in her apartment for the purpose of using the bathroom. She estimated that defendant had been inside of her apartment by himself for approximately 20 minutes.

Shortly thereafter, defendant emerged from the apartment and sat on some steps nearby. The victim saw defendant putting something into his backpack. When the victim asked defendant about his plans, he said that he would not wait for the neighbor to return home. He began heading across the parking lot. The victim went inside her apartment to discover that her purse was missing from the nightstand next to her bed. A stack of videocassette tapes had been moved from a stand by the television in her bedroom area to underneath a bench in her shower. She notified the police and provided a list of missing things, including money and bus tickets. The following day, the neighbor’s boyfriend returned the purse to the victim, but many of its contents were missing.

Defendant was charged with first-degree burglary, ORS 164.225, among several other counts that are not relevant to the issue on appeal. The offense of first-degree burglary, as it was charged here, requires that a person commit second-degree burglary, ORS 164.215, and that the building the person enter be a dwelling. ORS 164.225(1). A person commits second-degree burglary “if the person enters or remains unlawfully in a building with intent to commit a crime therein.” ORS 164.215. To “enter or remain unlawfully” in the context of this case means “[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.” ORS 164.205(3)(a).

Defendant moved for a judgment of acquittal. He argued that he had permission to be present in the victim’s apartment and, to revoke that permission, “there has to be some notice given to the person who’s invited into the home.” No such notice was given to him, either expressly or impliedly, and, he added, merely committing a crime in a place where he was permitted to be could not convert that activity to a [765]*765burglary. Without waiting for the state’s response, the trial court rejoined, “[W]hen you commit the crime in the house, you revoke any permission you were given to be there.”1 The court denied defendant’s motion. During the state’s closing argument the state addressed the issue:

“And so I’m not going to say or argue to you that every single time a person decides they want to commit a crime in somebody’s house that that elevates what’s otherwise a consensual entry into a burglary. But you have to think about the details and the circumstances.
“The definition of unlawful entry or remain talks about a person who is not licensed or privileged. *** [W]hen you say, ‘You can use the bathroom,’ and they don’t do that, but they go into your bedroom, is that beyond the scope of consent? Of course it is.
“Nobody would feel like, ‘If I let somebody go into my apartment because they asked to use the bathroom, it’s okay for them to root around in my bedroom and steal my purse.’ That’s beyond the license of privilege the defendant had, and he knew it.”

Defendant was convicted on a count of first-degree burglary, corresponding to the count for his conduct at the victim’s apartment, in addition to other offenses.

On appeal, defendant challenges the trial court’s ruling, arguing that defendant did not lose his license or privilege to be in the victim’s apartment by subsequently forming the intent to commit a crime therein. Defendant contends that “to prove the trespass aspect of burglary, the state must establish that the defendant lacked a license or privilege to enter or remain on the premises, and the defendant’s knowledge thereof.”2 The state responds that defendant had a limited license or privilege to be in the victim’s apartment, that defendant exceeded the scope of that license by entering and remaining in the victim’s bedroom [766]*766area, and therefore, that he was unlawfully present in the victim’s apartment when he stole her purse.

Our review begins with the elements of the crime charged. “ [B]urglary as defined by ORS 164.225 is accomplished if a person (1) enters or remains unlawfully, (2) in a dwelling, (3) with intent to commit a crime therein.” State v. Andre, 142 Or App 285, 289-90, 920 P2d 1145, rev den,

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Cite This Page — Counsel Stack

Bluebook (online)
341 P.3d 833, 267 Or. App. 762, 2014 Ore. App. LEXIS 1780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-evans-orctapp-2014.