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State v. Evans

Court of Appeals of Oregon

December 24, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
MARKELL MONTA EVANS, Defendant-Appellant

June 17, 2014, Argued and Submitted

Multnomah County Circuit Court. 110833166, 111034382. Edward J. Jones, Judge.

Affirmed.

Daniel C. Bennett, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief was Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DeVore, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.

OPINION

Page 834

[267 Or.App. 763] DEVORE, P. J.

Defendant appeals a judgment of conviction for first-degree burglary, ORS 164.225, assigning error to the trial court's denial of his motion for a judgment of acquittal. He argues that the state failed to prove that he was not licensed or privileged to be in the victim's apartment at the time that he stole her purse and that the state did not prove that defendant had lost his license or privilege to remain in the victim's apartment. We view the evidence in the light most favorable to the state to determine whether a rational factfinder could find that the state had proved every element of the offense beyond a reasonable doubt. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). We conclude that defendant exceeded the express limits of the license to be in the victim's apartment, and we affirm.

The facts are undisputed. The victim, who has a physical disability, was sitting outside of her apartment visiting with a friend. She learned " that [defendant] was helping the neighbor across from [her] move furniture and stuff." She had never seen defendant before. The neighbor left for an hour or two while defendant stayed behind. He lingered between the victim's and the neighbor's apartments and eventually asked if he could use the victim's bathroom. Believing that defendant was her neighbor's friend, the victim said, " Yes, you can go," and she told defendant where to find the bathroom. Defendant entered the victim's two-bedroom apartment while she continued sitting outside, next to her front door, speaking with her friend. After talking for a while, the

Page 835

victim realized that it was " taking [defendant] a long time" and " got kind of worried."

To get to the bathroom, a person would enter the apartment through the front door, take two small steps to the left, " go right down the hallway," and go into the bathroom on the right. The door to the bathroom was removed so that the victim could easily access the facilities. Her bed and nightstand, which were in the front room of her apartment, were visible from the front entryway. A wall separated the bathroom from the area where her bed and nightstand were located. The victim did not hear the toilet flush, and she believed that she would have been able to hear a flush [267 Or.App. 764] because the front door had remained open while defendant was in the apartment. She expected that defendant would only be present in her apartment for the purpose of using the bathroom. She estimated that defendant had been inside of her apartment by himself for approximately 20 minutes.

Shortly thereafter, defendant emerged from the apartment and sat on some steps nearby. The victim saw defendant putting something into his backpack. When the victim asked defendant about his plans, he said that he would not wait for the neighbor to return home. He began heading across the parking lot. The victim went inside her apartment to discover that her purse was missing from the nightstand next to her bed. A stack of videocassette tapes had been moved from a stand by the television in her bedroom area to underneath a bench in her shower. She notified the police and provided a list of missing ...


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