Submitted May 28, 2014
Linn County Circuit Court. 12010200. James C. Egan, Judge.
Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[264 Or.App. 733] GARRETT, J.
Defendant was convicted of one count of burglary in
the second degree, ORS 164.215, after he walked through the unlocked front door
of the Albany Tennis Club (the club) and stole items from a purse that had been
left in the women's locker room. On appeal, defendant makes two assignments of
error. First, he argues that the trial court erroneously denied his motion for a
judgment of acquittal because the state failed to prove that the club was " not
open to the public." Second, defendant argues that the trial court plainly erred
when it instructed the jury on the elements of the crime of second-degree
burglary. We reject defendant's first assignment of error and decline to
exercise our discretion to correct his second assignment of error. We,
Because defendant appeals the denial of his motion for a judgment of acquittal, we review the evidence in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). The club's facilities include indoor and outdoor tennis courts, a swimming pool, and locker rooms. A visitor to the club would walk from the parking lot along a concrete pathway to the front door of the building. To the left of the pathway is a fence and gate that leads to the pool and outdoor tennis courts. A sign on the fence reads, " Albany Tennis Club" and " Memberships Available." Another sign on the gate reads, " All Members & Guests Must Sign In Before Use." On the door to the main building is yet another sign that provides a telephone number for people to call for " Albany Tennis Club Membership Info."
Once inside the club, a visitor would see a desk up against the right-hand wall. The desk is not staffed by a person. A computer and a notebook used to reserve tennis courts would be sitting on the desk. To the left, a stairway leads up to a viewing area that overlooks the tennis courts. A short hallway leads to a gray door marked " Exit." Down that hallway on the left-hand side are the doors to the men's and women's locker rooms.
The main door to the building is usually locked. An electronic card reader allows members to unlock the [264 Or.App. 734] door. Sometimes the door is left unlocked in order to allow nonmembers to access the club; for example, when the club is hosting junior tennis classes, the door is typically left unlocked so that nonmembers (who pay a fee to participate) may enter.
On January 10, 2012, the door was unlocked from approximately 2:45 p.m. to 5:00 p.m. to allow access to a nonmember parent of a child who was taking junior tennis lessons. The parent had called ahead to obtain permission to enter. At approximately 3:00 p.m., one of the club's members, Dwier, arrived at the club for a tennis lesson. Dwier left some personal belongings, including her purse, in the women's locker room. After returning from her lesson, Dwier discovered that her purse was missing from the locker room.
Dwier's purse was later spotted lying in the street near the club. Several items were missing. Police arrived and reviewed the club's video surveillance footage from that afternoon. The video showed that defendant, wearing a brown jacket, had walked through the front door, down the hallway towards the locker rooms, and then walked out the front door. The video did not show defendant carrying a purse. Defendant is not a member of the club and did not ask permission to enter the building.
Several weeks later, police encountered and arrested defendant. Defendant was wearing the ...