State v. Davis

Second-degree burglary convictions affirmed and reversed based on whether buildings were "not open to the public" as defined in ORS 164.205(3)(a).

Defendant challenged two convictions for second-degree burglary (Counts 3 and 5), arguing that there was insufficient evidence to convict him for unlawfully entering a building, and thus, that the trial court erred in denying his motion for judgment of acquittal. Defendant contended that he entered public areas that could not be considered separate buildings. Count 3 involved defendant’s entry into an office located on the second story of a multistory building. Under ORS 164.205(3)(a), plaintiff needed to prove that the area of the office defendant entered was “not open to the public.” There were no indications that the office was open to the public and at the time the defendant entered the office, there were no employees present. Therefore, the court found that the office was not open to the public and affirmed the trial court’s denial of defendant’s MJOA for Count 3. Count 5 took place on a university campus in a room that had several entrances, a front counter, and indications that it was accessible by the general public. The court held that, when viewing the evidence in favor of the state, a rational fact finder could not conclude that the room was “not open to the public” as defined in ORS 164.205(3)(a). Count 5 reversed; remanded for resentencing; otherwise affirmed.