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State v. Klein

Court of Appeals of Oregon

December 3, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
EDWARD LIONEL KLEIN, SR., Defendant-Appellant

Submitted May 27, 2014

Curry County Circuit Court. 12CR0436. Cynthia Lynnae Beaman, Judge. (Judgment). Richard L. Barron, Judge. (Amended Judgment).

Peter Gartlan, Chief Defender, and Alice S. Newlin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Mooney, Judge pro tempore.

OPINION

Page 90

[267 Or.App. 350] SERCOMBE, P. J.

Defendant, who was convicted of first-degree criminal trespass, ORS 164.255, appeals, contending that the trial court erred in denying his motion for judgment of acquittal. He asserts that he did not unlawfully enter or remain in a dwelling as required for first-degree criminal trespass. As explained below, we agree that the trial court should have granted defendant's motion for judgment of acquittal. Accordingly, we reverse.

In reviewing the denial of a motion for judgment of acquittal, we state the evidence in the light most favorable to the state. State v. Hall, 327 Or. 568, 570, 966 P.2d 208 (1998); State v. Alvarado, 257 Or.App. 612, 614, 307 P.3d 540 (2013).

Defendant shared a mobile home with his mother (Nash), who rented a space for the mobile home in a mobile home park owned by Wilson. When Nash fell behind on the rent for the space, Wilson brought a legal proceeding against her and ultimately obtained a writ of execution returning the premises to his possession. A sheriff's deputy posted a notice that the occupants of the space had been " evicted by an order of the court" and that " trespassing or entering into or upon these premises without written consent of the landlord [would] result in arrest and prosecution." (Capitalization omitted.) Thereafter, defendant reentered the mobile home, which remained in the space at the mobile home park. Wilson, who had not given defendant permission to enter the property, notified the police and, as a result, defendant was arrested and charged with first-degree criminal trespass.

At the close of the state's case, defendant moved for a judgment of acquittal on the charge of first-degree criminal trespass. He contended that, although the landlord was entitled to possession of the real property, the mobile home was separate. According to defendant, " as long as his mother gave him permission to be in [the mobile home], * * * they don't have a Trespass I because that requires trespassing into the residence itself. And, granted, that you can't be in the residence itself without being on the real property, but we feel as a matter of law that he did not commit Trespass I." The trial court denied the motion, and the jury found defendant guilty of first-degree criminal trespass.

[267 Or.App. 351] On appeal from the resulting judgment, defendant renews the argument he made before the trial court. In particular, he contends that the " trial court erred when it denied [his] motion for judgment of acquittal because, though defendant unlawfully entered the premises and committed criminal trespass in the second degree, defendant did not unlawfully enter or remain in the dwelling, as required for criminal trespass in the first degree." Defendant asserts that he

Page 91

" had license to enter the dwelling but not the premises." Thus, " when defendant entered onto the landlord's premises, he committed second degree criminal trespass. But when he continued into the dwelling," that was not an additional unlawful entry. Rather, in his view, the landlord had " no property rights in the dwelling" and could exclude persons from it " only because it [was] located on the landlord's real property." The state, for its part, asserts that the writ of execution " granted the park owner lawful possession of the mobile home" and, accordingly, the park owner could " exclude others from the mobile home ...


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