State v. Payton

"'A defendant's intent to commit a crime at the time of an unlawful entry is central to the crime of burglary. Without it a defendant's conduct cannot constitute burglary of any degree; that intent is, in fact, the essence of the offense.'" State v. J.N.S., 258 Or App, 310, 319, 308 P3d 1112 (2013) (quoting State v. Chatelain, 220 Or App 487, 188 P3d 325 (2008)).

Defendant appealed from a first-degree burglary conviction under ORS 164.225. Defendant assigned error to the trial court’s denial of his motion for acquittal. On appeal, Defendant argued that the "intent" portion of ORS 164.225 was not established in this case because there was no evidence to show that Defendant "intended" to commit the assault at the initial point when his "remaining" became unlawful. In response, the State argued that the required "intent" could be formed at any point during the unlawful remaining, not just the initial point the remaining became unlawful. "'A defendant's intent to commit a crime at the time of an unlawful entry is central to the crime of burglary. Without it a defendant's conduct cannot constitute burglary of any degree; that intent is, in fact, the essence of the offense.'" State v. J.N.S., 258 Or App, 310, 319, 308 P3d 1112 (2013) (quoting State v. Chatelain, 220 Or App 487, 188 P3d 325 (2008)). The Court concluded that Defendant could not be convicted of first-degree burglary because the State did not present sufficient evidence that Defendant’s "intent" to commit the assault formed at the initial point the remaining became unlawful.

Conviction for first-degree burglary reversed and remanded for entry of judgment of conviction for first-degree criminal trespass and resentencing; otherwise affirmed.