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State v. Henderson

Court of Appeals of Oregon

November 7, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DUSTIN LEE HENDERSON, aka Dustin L. Henderson, Defendant-Appellant.

          Submitted September 18, 2018

          Multnomah County Circuit Court 15CR32629; Thomas M. Ryan, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, filed the brief for respondent.

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

         Case Summary: Defendant broke into his former girlfriend's home and damaged her property. He was charged with several counts, including first-degree burglary, which the state charged on a theory that defendant entered the victim's home with the intention "to commit the crime of Criminal Mischief therein." Following a jury trial, defendant was convicted of burglary and criminal mischief. On appeal, defendant argues that the trial court erred by denying his motion for judgment of acquittal on the burglary charge because the state did not prove that he had the intent to commit criminal mischief when he entered the victim's home. Held: The trial court erred, because the evidence was insufficient to support an inference, as opposed to speculation, that defendant had already formed the specific intent to damage the victim's property by the time he got inside her house. However, the evidence established that he committed the lesser-included offense of first-degree criminal trespass by unlawfully entering a dwelling.

         [294 Or.App. 665] Count 1 reversed and remanded with instructions to enter judgment of conviction for first-degree criminal trespass; remanded for resentencing; otherwise affirmed.

         [294 Or.App. 666] HADLOCK, P. J.

         Defendant broke into his former girlfriend's home and damaged her property. He was charged with first-degree burglary constituting domestic violence (Count 1), second-degree criminal mischief (Count 2), third-degree theft (Count 3), and witness tampering (Count 4). The state charged the burglary count on a theory that defendant entered the victim's home with the intention "to commit the crime of Criminal Mischief therein." Following a jury trial, defendant moved for a judgment of acquittal on both the burglary and the witness-tampering charges; the court granted the motion as to the latter charge but not as to the former. The jury found defendant guilty of burglary and criminal mischief and not guilty of theft. The court entered a judgment in accordance with that verdict.

         Defendant raises two arguments on appeal. First, he makes an unpreserved argument that the trial court was required to give a jury-concurrence instruction in association with the criminal-mischief charge. We reject that argument without discussion. Second, defendant contends that the trial court erred by denying his motion for judgment of acquittal on the burglary charge because the state did not prove that he had the intention to commit criminal mischief when he entered the victim's home. We agree. Accordingly, we reverse the burglary conviction and remand for entry of a judgment that includes a conviction for the lesser-included offense of first-degree criminal trespass and for resentencing; we otherwise affirm.

         When reviewing the denial of a motion for judgment of acquittal, we "view the evidence in the light most favorable to the state, giving the state the benefit of all reasonable inferences that may properly be drawn from that evidence, to determine whether any rational trier of fact could have found the essential elements of the offenses beyond a reasonable doubt." State v. Miller, 196 Or.App. 354, 356, 103 P.3d 112 (2004), rev den, 338 Or. 488 (2005) (citations omitted). We set out the facts in keeping with that standard of review.

         Defendant is the victim's former boyfriend and they have two young children together. Defendant and the victim [294 Or.App. 667] have had a tumultuous relationship involving many arguments, separations, and reunifications. They last lived together about three years before trial, and defendant has never lived in the house where the victim resides now. The victim did sometimes allow defendant to visit the home, either to spend the night or to visit their children. Defendant had most recently visited the children about one week before the incident that resulted in the charges against him. At that time, the victim told defendant that he was no longer welcomed at her house.

         On the day in question, defendant arrived unexpectedly at the victim's home as she prepared for her shift at work, which started in the early afternoon. Defendant wanted to talk, but the victim told him that he could not come inside. He became upset and walked off. The victim feared that defendant might break into the house, so she locked all the windows and doors. As she drove to work, the victim saw defendant at a MAX stop two blocks from her house.

         Defendant sent three text messages to the victim shortly after she left for work. The victim interpreted those messages as defendant expressing his feeling that the victim "didn't really try to make [their] relationship work" and that defendant "was the only one trying." Among other things, defendant accused the victim of never taking the time to listen to him; he also said that he "wish[ed] things could be different but you've proved me wrong you selfish ass bitch. Love doesn't conquer all." An hour and a half later, defendant sent another text message stating, "I'll see you when I see you! Too bad you never wanted to listen." That message also included a photograph of defendant's arm, which he had cut deeply; the picture ...


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