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State v. Webb

Court of Appeals of Oregon

April 2, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL JOSEPH WEBB, Defendant-Appellant

Argued and Submitted: February 19, 2013.

Grant County Circuit Court 1009290CR. Mark Gardner, Senior Judge.

Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. On the briefs were Peter Gartlan, Chief Defender, and Erin Snyder, Deputy Public Defender, Office of Public Defense Services.

Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.

OPINION

Page 523

[262 Or.App. 3] WOLLHEIM, J.

Defendant appeals a judgment of conviction for one count of second-degree burglary (Count 3) and two counts of first-degree theft (Counts 2 and 5), arguing that the trial court erred in denying his motion for judgment of acquittal on the burglary conviction and in sentencing him as a repeat property offender on Count 5 under ORS 137.717. For the reasons explained herein, we affirm defendant's convictions and do not address his sentencing argument, because it has become moot.

In reviewing the denial of a motion for judgment of acquittal, we state the facts in the light most favorable to the state to determine whether a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. King, 307 Ore. 332, 339, 768 P.2d 391 (1989); State v. Kirkland, 241 Or.App. 40, 249 P.3d 554 (2011).

On April 18, 2010, defendant and a companion broke into and stole a number of items from a tractor trailer owned and being used by the victim to store inventory for his military surplus retail business located in an adjacent building. That same day, defendant and his companion broke into and stole items from a U-Haul trailer owned by a different victim.

Defendant was charged with a number of offenses. He was ultimately convicted of two counts of first-degree theft (Counts 2 and 5), ORS 164.055, for the conduct involving theft from the U-Haul trailer, one count of second-degree burglary (Count 3), ORS 164.215, for the conduct involving the theft from the tractor trailer, and one count of unlawful entry of a motor vehicle (Count 6), ORS 164.272.

Defendant was sentenced on Counts 2 and 3 to two years of supervised probation. On Count 5, the court sentenced defendant to 13 months' imprisonment and one year of post-prison supervision under ORS 137.717, as a repeat property offender. On Count 6, the trial court sentenced defendant to 12 months in jail, with credit for time served, to run concurrently with Counts 2, 3, and 5.

A person commits the offense of second-degree burglary if the person " enters or remains unlawfully in a building [262 Or.App. 4] with intent to commit a crime therein." ORS 164.215. In addition to its " ordinary meaning," a " building," for purposes of ORS 164.215, is defined in ORS 164.205(1) to include " any booth, vehicle, boat, aircraft or other structure adapted * * * for carrying on business therein." The record shows that the tractor trailer that defendant broke into was used by the ...


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