- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 08-04-2021
- Case #: A164742
- Judge(s)/Court Below: Landau, S.J. for the Court, DeHoog, P.J. & Aoyagi, J.
- Full Text Opinion
Defendant was convicted of second-degree burglary and first-degree trespass. Defendant appealed several convictions which he argues the trial court should have merged. Under ORS 161.067(1), merger is required when elements of one offense are subsumed by another. First-degree trespass requires that a person enters or remains unlawfully in a “dwelling,” second-degree burglary involves entering and remaining unlawfully in a “building” with intent to commit a crime. While a “dwelling” is considered a type of “building” prosecution had to prove, for the first-degree trespass, that Defendant entered a “dwelling.” The elements are sufficiently distinct to not need to be merged. The trial court did not err in keeping the convictions unmerged. Defendant also raises a claim of structural error because the court allowed for a non-unanimous jury instruction. However, a jury poll was not requested, because the issue is unpreserved the court exercises discretion in not ruling on the issue. AFFIRMED.