Argued and Submitted August 21, 2013
Lane County Circuit Court. 201007807. Suzanne B. Chanti, Judge.
Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services.
Jona Jolyne Maukonen, Assistant Attorney General, argued the cause for respondent. On the brief was John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[261 Or.App. 39] NAKAMOTO, J.
Defendant appeals a judgment of conviction for three counts of second-degree burglary, ORS 164.215, and one count of identity theft, ORS 165.800. Defendant challenges two of his convictions for second-degree burglary (Counts 3 and 5), arguing that the trial court improperly denied his motion for judgment of acquittal (MJOA) on those counts, because the evidence for each count was insufficient to show that he " unlawfully entered" a " building," as defined in ORS 164.205(3)(a) and (1), respectively. Defendant contends that he instead entered into public areas that could not be considered separate buildings. We conclude that, as to Count 5, the trial court erred in concluding that there was sufficient evidence to prove that defendant " unlawfully entered or remained" in a building and, therefore, reverse that conviction and remand for resentencing; otherwise, we affirm.
Second-degree burglary requires proof of three elements: the defendant (1) entered or remained unlawfully, (2) in a building, (3) with intent to commit a crime therein. ORS 164.215. We review the denial of an MJOA for whether a rational factfinder could find, after viewing the evidence in the light most favorable to the state and making reasonable inferences and credibility choices, that the state proved every element of the offense beyond a reasonable doubt. State v. Hall, 327 Ore. 568, 570, 966 P.2d 208 (1998).
Count 3 involved defendant's entry into the offices of Alternative Work Concepts (AWC), an organization that works with people with disabilities. AWC was located on the second floor of a multistory office building. A stairway and an elevator provided access to an interior hallway. The second door along that hallway led to AWC's office suite. There were no windows in AWC's office door or adjacent to it, the door was almost always locked, and the only sign on the door said " Alternative Work Concepts." Members of
the public thus had to knock to gain entrance, and people visiting the office usually had appointments. The office common area directly behind AWC's office door contained a file cabinet, a large plant, a low table with a fax machine on it, and a chair, all lining a wall. Also in view of the door was a table with break-room or kitchen items spread across it, such as [261 Or.App. 40] a toaster, a coffee maker, plastic food containers, and paper plates and napkins. There was no reception desk or signage.
An employee, West, had a work area within the AWC office suite; there were also two interior offices within the suite. One morning in 2010, West was at work alone. When she left the office suite to use the restroom, she closed the door between the office common area and the hallway. When she returned, she saw defendant come out of an interior corner office. West had never returned to the AWC office suite to find someone she did not expect and asked defendant if she could help him. Appearing nervous, defendant said that he was looking for somebody and that he must have the wrong place. He quickly left. West then discovered that her wallet, which had been at her desk, was missing.
The events regarding Count 5 took place at the University of Oregon, specifically in Room 120 of Deschutes Hall--a building on the university campus that has several entrances. The front entrance to Deschutes Hall did not display signs restricting entry to students. Within Room 120, there was a front counter, behind which were two work stations and two interior offices. On the front counter was a computer facing outward, as well as handouts, office supplies, and a sign indicating that assistance was available in Room 120 B if no one was in Room 120 to provide it. Room 120 B was an interior ...