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State v. Elbon McKnight

Court of Appeals of Oregon

August 8, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
BRANDON MICHAEL ELBON McKNIGHT, Defendant-Appellant.

          Argued and submitted January 23, 2018

          Lincoln County Circuit Court 150507; David B. Connell, Judge.

          David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for first-degree burglary for remaining in a home past the time the owner had authorized him to be there and taking bottles of Vicodin belonging to the homeowner. He assigns error to the denial of his motion for judgment of acquittal, contending that the evidence is insufficient to permit a rational faultfinder to fend either that he (1) unlawfully remained in the house or (2) possessed the requisite intent to commit a crime in the house at the start of any unlawful remaining. Held: The trial court erred when it denied defendant's motion for judgment of acquittal. The evidence was sufficient to support a fending that defendant unlawfully remained in the house, but was not sufficient to support a fending that defendant had the intent to commit the theft of the Vicodin at the start of his unlawful remaining.

         Reversed and remanded for entry of judgment of conviction for first-degree criminal trespass and resentencing.

         [293 Or. 275] LAGESEN, P. J.

         Defendant visited Lincoln City. While there, he stayed in a house belonging to a family friend. He had been authorized to enter the house-and may have been authorized to stay in the house for as long as one night-but, instead, he stayed for multiple days. During that time, he took or consumed bottles of Vicodin belonging to the homeowner. This led to a charge for first-degree burglary on the ground that defendant "did unlawfully and knowingly enter or remain in a dwelling * * * with the intent to commit the crime of theft therein."[1] Defendant was convicted on that charge in a court trial after the court denied his motion for judgment of acquittal.

         On appeal, defendant assigns error to the denial of his motion for judgment of acquittal, contending that the evidence is insufficient to permit a rational factfinder to find either that he (1) unlawfully remained in the house or (2) possessed the requisite intent to commit a crime in the house at the start of any unlawful remaining, as required under State v. J. N. S., 258 Or.App. 310, 318-19, 308 P.3d 1112 (2013). We conclude that the evidence is sufficient to support a finding that defendant unlawfully remained in the house, but is not sufficient to support a finding that defendant had the intent to commit the theft of the Vicodin at the start of his unlawful remaining. We therefore reverse and remand for entry of a judgment of conviction for the lesser-included offense of first-degree criminal trespass and for resentenc-ing. In so doing, we reject the state's arguments that we must overrule J. N. S. in view of the Supreme Court's decision in State v. Pipkin, 354 Or. 513, 316 P.3d 255 (2013).

         We review the denial of a motion for a judgment of acquittal to determine whether, viewing the evidence and all reasonable inferences from the evidence in the light most favorable to the state, "a rational trier of fact * * * could have found the essential element[s] 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).

         [293 Or. 276] A person commits the crime of first-degree burglary if "the person enters or remains unlawfully in a building with the intent to commit a crime therein," ORS 164.215, [2]and "the building is a dwelling," ORS 164.225.[3] So defined, the crime of first-degree burglary constitutes "an aggravated form of criminal trespass" that requires proof of three elements: criminal trespass, of a dwelling, with the intent to commit a crime therein.[4] State v. Werner, 281 Or.App. 154, 163, 383 P.3d 875 (2016), rev den, 361 Or. 312 (2017).

         In addition, there must be a temporal connection between the defendant's intent to commit a crime and the initiation of the defendant's trespass. We held in J. N. S. that the requisite "intent to commit a crime therein" must be present at the start of the defendant's unlawful trespass, whether that trespass consisted of an initial unlawful entry or an unlawful remaining after an initial lawful entry. 258 Or.App. at 318-19. Reasoning that the "legislative purpose underlying the crime of burglary * * * is to punish trespass for the purpose of committing a crime," id. at 319 (emphasis added), we explained:

"As we observed in State v. Chatelain, 220 Or.App. 487, 492, 188 P.3d 325 (2008), aff'd,347 Or. 278, 220 P.3d 41 (2009), '[a] defendant's intent to commit a crime at the time of an unlawful entry is central to the crime of burglary. Without it a defendant's conduct cannot constitute burglary of any degree; that intent ...

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