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State v. Shapiro

Court of Appeals of Oregon

May 6, 2015

STATE OF OREGON, Plaintiff-Respondent,
MATTHEW ELAN SHAPIRO, Defendant-Appellant

Argued and Submitted October 28, 2014

 Multnomah County Circuit Court No. 120532087. Edward J. Jones, Judge..

Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Andrew M. Lavin, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.


Page 609

[270 Or.App. 703] GARRETT, J.

Defendant appeals a judgment of conviction of one count of second-degree burglary, ORS 164.215, and one count of third-degree theft, ORS 164.043. While a patient in the emergency department at Oregon Health and Science University (OHSU), defendant left the emergency department and entered a waiting room in another area of the hospital late at night, after visiting hours were over and when access was controlled by a security guard. Surveillance video showed defendant removing an unidentifiable object from a purse in the waiting room; the purse's owner later reported that money was missing. On appeal, defendant argues that the trial court should have granted his motion for a judgment of acquittal on both the burglary and the theft counts. We reject defendant's challenge to his theft conviction without further written discussion. With respect to defendant's burglary conviction, defendant argues that the state failed to adduce sufficient evidence that the waiting room was " not open to the public." We conclude that the evidence was sufficient and affirm the judgment.

Because defendant's assignments of error are to the denial of his motions for judgments of acquittal, we view the record in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994), abrogated on other grounds by State v. Mills, 354 Or. 350, 312 P.3d 515 (2013). Defendant was a frequent visitor to the OHSU campus. He had more than 120 interactions with OHSU security over the course of several years, some of which resulted in defendant being arrested, cited for trespass, or escorted off the campus. Security personnel informed defendant that he was allowed to seek treatment from the emergency department, but that he was prohibited from being anywhere else on OHSU property. Prior to 2011, defendant was subject at various times to exclusion orders, pursuant to which he was prohibited from being on the OHSU campus except for emergency medical care or scheduled medical appointments. According to OHSU policy, a violation of an exclusion order can result in a person being arrested for trespassing. In early 2011, however,

Page 610

OHSU changed its procedures regarding exclusion orders. One of the results of that change was that previous exclusion orders were [270 Or.App. 704] nullified. It is, therefore, undisputed that, on March 29 and March 30, 2012, the dates at issue in this case, defendant was not actually subject to an order excluding him from any part of the OHSU campus. There is no evidence in the record, however, that defendant was ever notified about the exclusion orders being lifted.

On the night of March 29, defendant was admitted to the OHSU emergency department. The nature of defendant's condition and treatment are not reflected in the record. At 2:51 a.m., security officer Kurepa received a call that defendant was not in his room and needed to return for more treatment. Kurepa located defendant in the reception area on the ninth floor of a building called the south hospital. The emergency department is on the eighth floor of a different building, the Hatfield Research Center. Kurepa escorted defendant back to the emergency department. After defendant's treatment was concluded, Kurepa escorted him off the campus at 4:15 a.m.

OHSU's intensive care unit (ICU) is in a building called Kohler Pavilion. At 5:00 a.m. a woman, Corral, who had been asleep in the ICU waiting room, woke up and noticed that her purse had been moved from where she had left it to a nearby counter or desk. The purse was open, and Corral's wallet was sitting on top of it. The wallet contained no money. In response to the incident, OHSU security checked surveillance video, which showed defendant entering the ICU waiting room sometime between 12:30 a.m. and 2:30 a.m., walking off-camera toward the area where Corral was sleeping, returning with a purse, setting the purse on the counter, looking through it, placing something in his pocket, and leaving.

Defendant was charged with one count of second-degree burglary (Count 1) and one count of second-degree theft (Count 2). Defendant waived his right to a jury trial, and the case was tried to the court. At trial, the state offered testimony from OHSU security personnel, who explained the security measures used to restrict movement around the OHSU campus. Detective Sergeant Johnstun testified that, after 9:00 p.m., all the outside doors that could be used to access Kohler Pavilion are locked to anyone without a key [270 Or.App. 705] card. Thus, the only way for defendant to access the ICU would be to walk from the emergency department entrance, located in the Hatfield Research Center, through the south hospital and into the Kohler Pavilion. Indoor walkways connect all three buildings; signs indicate which building a person is in. There are no locked doors between the emergency department and the ICU. There is, however, a security guard stationed between the emergency department and the south hospital. Kurepa testified that that guard's job is to make sure unauthorized persons are not wandering into other parts of the hospital. Thus, anyone wishing to leave the emergency department must check in with that security guard. For visitors, standard procedure would be for the ...

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