State v. Berndt

Under ORS 164.215(1), a defendant does not trespass on property he/she otherwise has permission to enter just because his/her activity is outside the general scope of the license to be on the property.

Defendant appealed his conviction for dozens of charges related to him repeatedly breaking into lockers at a gym and stealing valuables, credit cards, and car keys. Defendant raised 46 assignments of error on appeal, all relating to the second-degree burglary and identity-theft convictions. Defendant assigned error to the trial court's denial of his motion for judgment of acquittal on the second-degree burglary charges because he was lawfully on the property and had permission to be there, and therefore the State could not prove the elements of second-degree burglary. "ORS 164.215(1) provides that a person commits the crime of second-degree burglary 'if the person enters or remains unlawfully in a building with intent to commit a crime there in.'" The State argued that Eby "became a trespasser once he acted outside the scope of his license, regardless of the criminality of his subsequent conduct." The Court concluded that the State did not provide evidence of a license to be on the gym's property that was restricted to certain uses and to agree with the State would potentially make every day gym members trespassers just because of their specific actions on the property (such as lingering in the lobby after a workout). Reversed as to the burglary counts and four identity-theft counts and remanded for resentencing; otherwise affirmed.