Submitted July 31, 2014
Jackson County Circuit Court No. 121366DV, Lorenzo A. Mejia, Judge.
Reversed and remanded.
Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.
[265 Or.App. 227] HASELTON, C. J.
Defendant, who was convicted of third-degree assault, ORS 163.165, felony fourth-degree assault, ORS 163.160(3)(c), menacing, ORS 163.190, and three counts of reckless endangerment, ORS 163.195, appeals, arguing, inter alia, that the trial court erred in (1) failing to instruct the jury on the legal definition of " burglary" as it related to his self-defense defense and (2) denying defendant's motion for judgment of acquittal (MJOA) with respect to the felony enhancement of fourth-degree assault. The state concedes error in both respects, and acknowledges that defendant is entitled to reversal for a new trial on all counts, with any retrial of the fourth-degree assault charge being limited to the misdemeanor variant of that offense. We accept the state's concessions and, accordingly, reverse and remand for a new trial.
The material circumstances for purposes of our review are undisputed. On March 21, 2012, defendant and his wife, Duvall, had an argument, after which Duvall left the couple's home (which defendant owned) and took her children to stay with her father, Gregg. Defendant and Duvall have one child together, A. Duvall also has a child from a previous marriage, D.
On March 23, Duvall and Gregg drove with A and D to defendant's home to retrieve some of Duvall's belongings. After discovering that defendant had changed the locks, Duvall pounded on the door. Defendant, who was inside, told her to go away. Duvall threw a brick through a window, and she and Gregg proceeded to tear down the blinds behind the shattered window pane.
Defendant believed that Duvall and Gregg did not have a right to enter the house, and he feared that they intended to hurt him. Defendant yelled at them to go away and told them that he was armed. When Gregg and Duvall persisted in their attempt to enter the house, defendant fired a single gunshot toward the ground. The bullet entered Gregg's foot. During that scene, D was in the front yard, and A was in Gregg's truck, which was parked 10 to 15 feet from the house.
[265 Or.App. 228] Shortly after that incident, defendant was arrested. He was later charged, inter alia, with assault, unlawful use of a weapon, menacing, and reckless endangering, all in relation to the above-described events. At trial, defendant asserted that ...