Argued and submitted on June 19, 2013.
Josephine County Circuit Court 11CR0129 Thomas M. Hull, Judge.
Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
SCHUMAN, P. J.
Defendant was charged with, among other crimes, first-degree burglary, ORS 164.225,  on the ground that he entered a dwelling with the intent to commit the crime of interfering with a peace officer therein, ORS 162.247,  by refusing to obey the officer's lawful order to "stop." Defendant moved for a judgment of acquittal on the theory that his refusal to obey the order was completed when he first disobeyed the officer's command to stop; therefore, defendant argued, he could not have intended to commit that already-completed crime within the dwelling when, thereafter, he concededly entered it. The court denied the motion, and defendant was convicted. He appeals, and we affirm.
In reviewing the denial of a motion for a judgment of acquittal, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the state to determine whether a rational trier of fact could have found that the state proved each element of the offense beyond a reasonable doubt. State v. Hall, 327 Or 568, 570, 966 P.2d 208 (1998). Consistent with that standard, the relevant facts are as follows. Grants Pass Police Officer Daniel and another officer arrived at an apartment complex to investigate several thefts that had occurred the night before. Some of the tenants identified defendant as a suspect, and the officers decided to speak with him. While the other officer approached the front of the apartment that defendant was in, Daniel went to the back, where he saw defendant standing at the base of a six-foot chain-link fence approximately 10 to 15 yards away. Defendant made eye contact with Daniel and then began climbing over the fence. Daniel yelled for defendant to "stop"; defendant, however, jumped down on the other side of the fence, paused for a couple of seconds, and then began running across the backyard of the neighboring residence. Daniel again yelled for defendant to stop and identified himself as a police officer, but defendant continued to flee.
Moments later, defendant entered the neighboring residence through the back door and went into the attached garage. One of the residents saw defendant enter and alerted her fiancé, who went into the garage to investigate. He saw defendant hiding there, yelled at him, and asked him what he was doing. Defendant said that he had just been in a fight and that the police were involved. He also said that he did not want to go to jail and asked the resident for help. The resident declined and told defendant to leave. Defendant left the garage, and within one minute he was in police custody. While in custody, he told police that he had fled because there were warrants for his arrest. Daniel estimated that less than two minutes had elapsed between the time when he ordered defendant to stop and when defendant was taken into custody. Defendant was arrested and charged with 10 burglary- or theft-related crimes, including first-degree burglary for the unlawful entry described above.
At trial, as described above, defendant moved for a judgment of acquittal on the charge of first-degree burglary for entering the residence with the intent to interfere with a police officer. He argued that the state had not presented sufficient evidence of his intent to commit a crime within the residence. According to defendant, because the crime of interfering with a peace officer by refusing to obey a lawful order was complete at the moment he refused to obey Daniel's order at the chain-link fence, and no further orders were given, defendant could not have entered the house with the intent to commit that already-completed crime. The state responded that it had provided sufficient evidence that defendant entered the dwelling with the intent to avoid capture, that is, to refuse to obey the order from Daniel. The trial court denied the motion, finding that there was a "continuation of his attempt to get away." Defendant was subsequently convicted.
On appeal, defendant assigns error to the trial court's denial of his motion for a judgment of acquittal. He reasons that the legislature could not have intended interfering with a peace officer by refusing to obey a lawful order to be a continuous, ongoing crime. Such an interpretation, defendant reasons, would compel the conclusion that a defendant who disobeys an order and flees from the police may commit the offense for months or years thereafter until his capture, with the result that every trespass during that period would automatically become a burglary.
In response, the state does not focus its argument on the question of whether the crime of refusing to obey the lawful order was complete once defendant first disobeyed it. Rather, the state argues that defendant's subsequent actions were additional violations of the same, single lawful order to stop. Under the state's theory, defendant could be charged with a separate count of interfering with a peace officer for each of his actions motivated by an intent to disobey that order; at oral argument, the state agreed that, if the state so desired, it could charge defendant for every step he took after hearing the order. The state provides two arguments for why this theory of criminal liability would not produce absurd results: First, a defendant's intent to disobey a lawful order would dissipate over time and become more difficult to prove; and, second, the multiple counts of the crime would be merged into a single conviction at trial. Applying that theory to this case, the state maintains that a jury could find that defendant committed the crime multiple times, including when he entered the dwelling, if the jury was persuaded that, at the time of the entrance, defendant intended to continue disobeying. Therefore, this subsequent and additional refusal to obey the lawful order could properly act as the underlying crime required for first-degree burglary. Although we agree that the state has the better argument, our reasoning is somewhat different.
The requirement that a defendant intends to commit a crime within the unlawfully-entered building is an essential feature of burglary. "Since the time of Blackstone, the defendant's intent to commit a crime in the building has been the characteristic distinguishing burglary from mere trespass." State v. Chatelain, 347 Or 278, 286, 220 P.3d 41 (2009) (citing 4 William Blackstone, Commentaries on the Laws of England 227 (1769) ("[I]t is clear, that [the] breaking and entry must be with a felonious intent, otherwise it is only a trespass.")). Furthermore, the defendant must possess the intent to commit a crime at the time of the unlawful entry. State v. Chatelain, 220 Or.App. 487, 492, 188 P.3d 325 (2008), aff'd, 347 Or 278, 220 P.3d 41 (2009). This requirement is consistent with the underlying legislative purpose of burglary, which is to punish trespass for the purpose of committing a crime. State v. J.N.S., 258 Or.App. 310, 319, 308 P.3d 1112 (2013).
As it is used in the burglary statute, the phrase "with intent" means "that a person acts with a conscious objective" to engage in certain conduct. ORS 161.085(7) (emphasis added). Thus, to determine whether defendant's actions constitute burglary, the determinative question is whether defendant entered the building with the conscious objective to disobey a lawful order. Because burglary turns on the person's intent upon entry, it is not necessary that the person actually accomplish the crime within the dwelling. See State v. Kelly, 5 Or.App. 103, 107-08, 482 P.2d 748 (1971) (circumstantial evidence was sufficient to prove an intent to steal, even though nothing was actually taken). Indeed, it is not even necessary for the person to know that the opportunity to accomplish the crime will arise. In State v. Batson, 35 Or.App. 175, 178, 580 P.2d 1066 (1978), for example, we held that, where the defendant removed a screen from a window and fled when police arrived, a jury could find that the defendant attempted to enter the dwelling with the intent to commit a crime inside. Intent is necessarily ...