State v. Shapiro

Under ORS 164.215 and ORS 164.043, an emergency room waiting area is not considered "open to the public" if a security guard is present.

Defendant was a patient at Oregon Health and Science University (OHSU) emergency department in late March 2012. While a patient there, he left the emergency department, entered a waiting area after hours, and took something from a purse in the room. A woman sleeping in the waiting area later identified that money had been taken from her purse. A security guard was present at the scene. Defendant was charged with one count of second-degree burglary and one count of third-degree theft. At trial, Defendant moved for acquittal on both counts. The trial court denied this motion and convicted Defendant of both counts. Defendant appealed this conviction, stating that he should have been acquitted from both charges because the state failed to establish that the waiting area “was not open to the public.” Defendant argued that exclusion orders he had previously received had been nullified by a changed policy, and that he therefore had authorization to enter the waiting area. On appeal, the Court held that the trial court was correct in denying Defendant’s motion for acquittal. Additionally, the Court found that a reasonable person would not believe that the waiting area was “open to the public” due to the presence of security at the time when Defendant entered the waiting area. Affirmed.