State v. Cook

ORS 164.235(1) requires both possession and intent to use a burglary tool to commit or facilitate a forcible entry or theft by physical taking. The intent element cannot be proven merely by proving the possession element.

Defendant appealed from a judgment of conviction under ORS 164.235(1), for possession of a burglary tool, which requires possession of a burglary tool with intent to use it to commit or facilitate a forcible entry or theft by physical taking. Officers spotted Defendant, known to them because Defendant lived in a high crime area and was associated with car prowlers. Officers initiated contact with Defendant and asked to search him. Defendant responded affirmatively, but told officers to hold on while he took an intertwined spark plug tool from his pocket and threw it under a nearby tarp. An officer recognized the tool, which was sitting in view under the tarp, as one used to break car windows. The officer arrested Defendant, retrieved the tool and gave Defendant his Miranda warnings; Defendant admitted he had thrown the tool because it was illegal. At trial, Defendant moved to suppress the evidence; the trial court denied the motion and the case proceeded to a bench trial. Defendant moved for judgment of acquittal but the motion was denied and Defendant was convicted. On appeal, Defendant acknowledged he possessed a burglary tool, but argued there was insufficient evidence of the intent element. The Court held the State did not present sufficient evidence to support that Defendant had the requisite intent because the record contained no evidence that Defendant intended to use the tool to commit or facilitate a theft by physical taking. Defendant was under no legal obligation to explain his possession of the tool. Defendant’s understanding that the tool had illegal uses does not support an inference of intent and the State’s “guilt by association” argument is merely speculation; the State cannot prove the intent element simply by proving the possession element. Reversed.