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State v. Cole

Court of Appeals of Oregon

February 28, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DARNEL COLE, Defendant-Appellant.

         Linn County Circuit Court 15CR02978 David E. Delsman, Judge.

          Argued and submitted November 22, 2016.

          Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Darnel Cole fled the supplemental brief pro se.

          Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Powers, Judge.

         Judgment of conviction for burglary reversed and remanded with instructions to enter a judgment of conviction for frst-degree criminal trespass; remanded for resen-tencing; otherwise affrmed.

         [290 Or.App. 554]

          Case Summary: Defendant appeals from a judgment of conviction for burglary in the frst degree, ORS 164.225, assigning error to the trial court's denial of his motion for a judgment of acquittal. On appeal, defendant argues there was insuffcient evidence to establish that he entered the dwelling with the intent to commit a crime therein. Held: The trial court erred. Viewing the evidence in the light most favorable to the state, no rational trier of fact could fnd beyond a reasonable doubt that defendant intended to commit theft or theft of services upon entry into the apartment.

         Judgment of conviction for burglary reversed and remanded with instructions to enter a judgment of conviction for frst degree criminal trespass; remanded for resentencing; otherwise affrmed.

          [290 Or.App. 555] [*] POWERS, J.

         Defendant appeals from a judgment of conviction for burglary in the first degree, ORS 164.225, assigning error to the denial of his motion for a judgment of acquittal.[1]The state proceeded at trial on the theory that defendant unlawfully entered the apartment of his former girlfriend "with the intent to commit theft and/or criminal mischief therein." Because there is insufficient evidence for a rational trier of fact to find beyond a reasonable doubt that defendant entered the apartment with the intent to commit theft or criminal mischief, we reverse defendant's burglary conviction and remand with instructions to enter a judgment of conviction for first-degree criminal trespass.[2]

         We review the denial of a motion for a judgment of acquittal to determine whether, after viewing the facts and all reasonable inferences in the light most favorable to the state, "a rational trier of fact * * * could have found the essential elements of the crime beyond a reasonable doubt." State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005 (1995). We state the following material facts in accordance with that standard.

         Defendant broke into the locked apartment of his former girlfriend while she was at work, causing damage to the door frame in the process. Although he occasionally was allowed to stay at the apartment and even had his own food and clothing there, defendant did not have permission to be in the victim's apartment that day. After breaking into the victim's apartment, defendant turned on the lights, ate a can of his chili, rearranged pictures on the refrigerator, ...


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