Argued and Submitted, Spray High School, Spray May 7, 2014.
120230702. Multnomah County Circuit Court. Judith H. Matarazzo, Judge.
Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services.
Matthew J. Lysne, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[271 Or.App. 293] NAKAMOTO, J.
Defendant appeals a judgment convicting him of first-degree burglary, ORS 164.225, assigning error to the trial court's failure to acquit him of that crime. As relevant here, the first-degree burglary statute requires the state to establish that a defendant unlawfully entered a " dwelling," as defined in ORS 164.205(2). In this case, defendant entered a mostly enclosed, roofed area between and connected to a house and a garage. Defendant contends that, because the area that he entered was a separate area outside the house, the state failed to establish that he entered a dwelling. For the reasons that follow, we affirm.
We state the facts in the light most favorable to the state and review those facts to determine whether a rational factfinder could find that the state proved the required elements beyond a reasonable doubt. State v. Forrester, 203 Or.App. 151, 153, 125 P.3d 47 (2005), rev den, 341 Or. 141, 139 P.3d 259 (2006). The state charged defendant with two counts of first-degree burglary in connection with his entry into an area of a residence on North Seward Avenue in Portland that the homeowners refer to as their " garden room" or " breezeway." For ease of reference, we refer to the area into which defendant entered as the " breezeway." We note, however, that the area in this case does not comport with the common understanding of the term " breezeway," which is " a roofed open-air passage or porch connecting two buildings (as a house and garage) or forming a corridor between two halves of a building (as of a cabin)." Webster's Third New Int'l Dictionary 274 (unabridged ed 2002). The breezeway in this case, as the facts indicate below, is more enclosed than that dictionary definition suggests.
The breezeway connects a two-story house with a two-story, two-car garage, and shares a wall with both the house and garage. The roof of the garage dips down to form the roof of the breezeway and extends to meet the side of the house. There is a wall at the back end of the breezeway with windows and a door that leads to a backyard. The front wall of the garage extends to the side of the house to create a front wall for the breezeway. The front wall of the breezeway contains a doorless archway. Photographs of the breezeway [271 Or.App. 294] in the record indicate that the archway is not much wider than the size of a doorway. Thus, as the trial court indicated, the breezeway has " three sides enclosed with a fourth side with an archway that is not closed off[,] so to speak[,] to the elements." From inside the breezeway, there is a door to the garage that locks, but
no door to the house. Stated another way, there is no direct access to the house from inside the breezeway.
Instead, just outside the front wall of the breezeway, there is a landing next to the side door to the house. The landing is not enclosed by walls, but is surrounded by some low fencing, potted plants, and a metal trellis with a gate that leads to a driveway in front of the garage. The landing is mostly covered by roofing that extends from the side of the house. As such, a person can walk from the side door of the house and into the breezeway, and then into the garage, while remaining under cover of the roof.
The homeowners use the breezeway to store various things, including nonperishable food items in a large cabinet, empty pop cans in a barrel, tools and equipment, as well as some furniture. They also use the breezeway as a dog run. Additionally, the homeowners use the breezeway to gain access to their garage and backyard. One of the homeowners testified that he views the area as part of his house.
One night, the homeowners noticed that some items in the breezeway had been moved while the homeowners had been inside the house. Later that night, one of the homeowners heard a noise coming from the breezeway. In response, he grabbed his shotgun (loaded with nonlethal rounds) and [271 Or.App. 295] walked out of the house through the side door and onto the covered landing. As he was turning left to walk through the archway and into the breezeway, the homeowner saw defendant inside the breezeway. Defendant ran toward the homeowner, who shot defendant in the shoulder. Defendant was able to run past the homeowner and rode away on a bicycle, but he was later found and arrested by police. Defendant was charged with one count of first-degree burglary with intent to commit theft (Count 1) in connection with his attempt to steal pop cans from inside the breezeway and one count of first-degree burglary with intent to commit criminal mischief (Count 2) for moving the homeowners' table saw in the breezeway.
Defendant waived his right to a jury trial, and the case was tried to the court. A central issue at trial was whether the breezeway was part of the dwelling, such that defendant's entry into that part of the residence constituted first-degree burglary. The trial court found that the breezeway was part of the dwelling and, accordingly, found defendant guilty of Count 1.
On appeal, in a single assignment of error, defendant argues that the trial court erred when it failed to acquit him of Count 1 because there was insufficient evidence to establish that he had entered a dwelling as required for first-degree burglary. The state's response is two-fold: first, it argues that defendant failed to preserve his argument below, and second, it contends that defendant's argument fails on the merits because the record demonstrates that the breezeway was part of a building (the house) that was a dwelling. For the reasons set forth below, we conclude that defendant preserved his argument, but we also conclude that there was sufficient evidence to establish that defendant entered a " dwelling" when he entered the homeowner's breezeway.
We begin with the state's preservation argument. Generally, we will not review a claim of error that was not raised in the trial court. ORAP 5.45(1) (" No matter claimed as error will be considered on appeal unless the claim of error was preserved in the ...