State v. Henderson

“A person commits the crime of burglary ‘if the person enters or remains unlawfully in a building with intent to commit a crime therein.’” ORS 164.215(1) (emphasis added).

Defendant appealed the trial court’s decision in rendering his conviction for trespassing and burglarizing his ex-partner’s home. Petitioner assigned error to the trial court’s denial of his motion for acquittal on the burglary charge. The court remanded the judgment of the burglary charge to a lesser offense of first-degree criminal trespass (ORS 164.255(1))(a) because, in adhering to the holding in Henderson, the State was required to make a showing that the Defendant had the intent to commit the additional crime(s) prior to entering the victim’s house and the State failed to make that showing. State v. Henderson, 294 Or App 664, 432, P3d 338 (2018). On appeal, Defendant maintained that the statute required that Defendant have the requisite intent to burglarize the home prior to trespass and that the State carries the burden.  In response, the state argued broadly that the statute focuses on the unlawful presence on the property and the intent to commit additional crimes can occur anytime within the unlawful presence. “A person commits the crime of burglary ‘if the person enters or remains unlawfully in a building with intent to commit a crime therein.’” ORS 164.215(1) (emphasis added). The Court found that “a person trespasses by unlawfully entering and remaining on private premises, or by entering lawfully and then remaining unlawfully. The additional element that raises trespass to burglary—the intent to commit an additional crime ‘therein’—must exist at some point during the unlawful presence.” Therefore, the trial court was correct when it denied defendant’s motion of acquittal on the burglary charge. The Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is affirmed.