State v. Cole

Under ORS 164.215(1), A person commits the crime of burglary in the second degree when a person "enters or remains unlawfully in a building with the intent to commit a crime therein." If the building is a dwelling, however, the crime is elevated from second-degree burglary to burglary in first degree. ORS 164.225(1).

Defendant appealed conviction of burglary in the first degree. Defendant assigned error to the trial court's denial of his motion for judgment of acquittal. On appeal, Defendant argued that there was insufficient evidence to establish that he entered the apartment with the intent to commit a crime. In response, the State argued that there was sufficient evidence to deny the motion because Defendant committed theft of services by using electricity once inside the apartment. A person commits the crime of burglary in the second degree when a person "enters or remains unlawfully in a building with the intent to commit a crime therein." If the building is a dwelling, however, the crime is elevated from second-degree burglary to burglary in first degree. ORS 164.225(1). The Court of Appeals held that the trial court erred in denying Defendant's motion for judgment of acquittal because "no rational trier of fact could find beyond a reasonable doubt that Defendant intended to commit theft of services upon entry into the apartment." Reversed and Remanded.