State v. Endicott

“A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” Restatement (Second) of Torts § 168 (1965); Strandholm v. Barbey, 145 Or 427, 440-41, 26 P2d 46 (1933).

Defendant appealed a judgment of conviction, among other offenses, for one count of burglary in the first-degree. Defendant assigned error to the trial court’s denial of his motion for a judgment of acquittal on the burglary counts that were substantially merged into one conviction. On appeal, Defendant argued primarily that the state failed to establish that Defendant did not have permission to enter or remain in the dwelling under ORS 164.025(3)(a).  In response, the State argued that Defendant exceeded the scope of his license or privilege by bringing a person into the dwelling that he was not authorized to bring with him, thus, his entry and remaining was unlawful. “A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” Restatement (Second) of Torts § 168 (1965); Strandholm v. Barbey, 145 Or 427, 440-41, 26 P2d 46 (1933). The Court held that a rational trier of fact could have found that the consent provided for Defendant to enter and remain in the dwelling included a restriction that Defendant did not bring another person and that Defendant violated the restriction by bringing in another person. Affirmed.