Argued and Submitted February 19, 2013
Multnomah County Circuit Court. 101051017. Cheryl A. Albrecht, Judge.
David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Anna M. Joyce, Solicitor General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Christina M. Hutchins, Senior Assistant Attorney General.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[261 Or.App. 24] WOLLHEIM, J.
Defendant, who was convicted after a jury trial of one count of second-degree criminal trespass, ORS 164.245(1), appeals, assigning error to the giving of a uniform jury instruction that he asserts relieved the state of proving an element of the offense. He seeks to have his conviction set aside and the case remanded for a new trial. We conclude that, even if the court erred in giving the instruction, the error does not require reversal. We therefore affirm defendant's conviction.
The facts are largely undisputed. Defendant was discovered sleeping in a sleeping bag on property along the Willamette River belonging to Zidell Marine Corporation. The property was marked with " no trespassing" signs and was enclosed on three sides by a chain link fence and barbed wire. Only the side along the Willamette River was not fenced. Defendant testified that he reached the property at night on an established trail from a paved walkway.
Defendant was charged with second-degree criminal trespass, ORS 164.245(1), based on his presence on Zidell's property. A person commits that offense " if the person enters or remains unlawfully * * * in or upon premises." ORS 164.245(1). ORS 164.205(3)(a) defines " to enter or remain unlawfully" as " [t]o enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so." The charging instrument alleged that defendant " did unlawfully and knowingly and recklessly enter and remain in and upon" the Zidell property.
At trial, the state put on evidence that the Zidell property was not open to the public and that defendant did not have permission to be there. Defendant did not contradict that evidence. His defense was that he went to the property to sleep with the purpose of helping a friend and that, given the configuration of the property, the path to it, and the placement of the no trespassing signs, a reasonable person in defendant's circumstances would have thought that the property was open to the public.
[261 Or.App. 25] The trial court gave Uniform Criminal Jury Instruction (UCrJI) 1900, which defines " to enter or remain unlawfully" in the same terms as the statute. Defendant objected to the instruction, contending that, despite following the language of the statute, the instruction was erroneous under this state's case law, in particular State v. Hartfield, 290 Ore. 583, 624 P.2d 588 (1981), and State v. Collins, 179 Or.App. 384, 39 P.3d 925, rev dismissed, 334 Ore. 491, 52 P.3d 1056 (2002).
In Hartfield, the Supreme Court held that, where one is permitted or invited to enter premises not open to the public, to prove an unlawful entry under ORS 164.205(3)(a), the state must prove that the person giving permission was without actual authority to do so, and that the entrant knew or believed that there was no actual authority. 290 Ore. at 595. In Collins, this court concluded that, consistently with Hartfield, to prove the offense of criminal trespass when premises ...