Submitted November 30, 2017
Douglas County Circuit Court 12CR0923FE; Frances Elaine
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erik Blumenthal, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Shannon T. Reel, Assistant Attorney General,
fled the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals a judgment of conviction for,
among other offenses, one count of first-degree burglary. ORS
164.225; ORS 164.215. On appeal, defendant challenges the
trial court's denial of his motion for a judgment of
acquittal. He contends that he had "license" to
enter and remain in the dwelling in which the jury found that
he intended to commit a crime. The state contends that,
because defendant exceeded the scope of his
"license" or "privilege" to enter and
remain in the dwelling by bringing a particular person into
the dwelling that defendant was not authorized to bring with
him, his entry and remaining was without "license"
or "privilege" and, consequently, was unlawful.
Held: The trial court did not err. A rational trier
of fact could have found, beyond a reasonable doubt, that
defendant's license or privilege to enter and remain in
the dwelling included a restriction that defendant not bring
the third party with him into the dwelling, and that
defendant violated that restriction by entering and remaining
with the third party. Consequently, a rational trier of fact
could have found, beyond a reasonable doubt, that
defendant's entry and remaining was without license or
Or.App. 645]TOOKEY, J.
appeals a judgment of conviction for, among other offenses,
one count of first-degree burglary. ORS 164.225; ORS 164.215.
On appeal, in his first assignment of error, defendant
challenges the trial court's denial of his motion for a
judgment of acquittal (MJOA) on the burglary counts that were
subsequently merged into a single conviction. Defendant
contends that he had "license" to enter and remain
in the dwelling in which the jury found he intended to commit
crimes. The state contends that, because defendant exceeded
the scope of his license or privilege to enter and remain in
the dwelling by bringing a person into the dwelling that
defendant was not authorized to bring with him, his entry and
remaining was not licensed or privileged and, consequently,
was unlawful. For the reasons set forth below, we conclude
that a rational trier of fact could have found beyond a
reasonable doubt that defendant's entry and remaining was
unlawful. Accordingly, we affirm.
review a trial court's denial of an MJOA, we view the
evidence in the light most favorable to the state. State
v. Rodriguez, 283 Or.App. 536, 537, 390 P.3d 1104,
rev den, 361 Or. 543 (2017). We state the facts
consistently with that standard.
rented an apartment in Glide, Oregon. At the time of the
burglary in this case, Sorenson was allowing a married
couple, ZM (the husband) and KM (the wife), to stay with him
at the apartment. In the months leading up to the burglary,
KM had been "involved in a check fraud identity theft
charge," and had identified three other individuals- at
least two of whom were friends of defendant-to police as
having also been involved in that conduct.
was also friends with defendant. In fact, Sorenson had given
defendant "full access" to his apartment, which
meant that, according to Sorenson, it "wasn't
abnormal for [defendant] to be waiting for [Sorenson] inside
[Sorenson's apartment] when [Sorenson] got off
work." The access that Sorenson had given to defendant
to enter and remain in Sorenson's apartment did not,
however, include [296 Or.App. 646] defendant bringing another
individual, Finnell, with him. Specifically, during
defendant's trial, Sorenson provided the following
"[Deputy District Attorney]: When you testified that you
gave [defendant] permission to go to and from your house,
that did not include bringing Mr. Finnell with him?
" [Sorenson]: No, it did not."
also testified during defendant's trial that, unlike
defendant, Finnell was not "okay to go and come"
from Sorenson's apartment and was not allowed in
Sorenson's apartment. Sorenson explained that "every
time I hang out with [Finnell] my chances of going to jail
go up three hundred percent" and that Finnell had
previously attacked Sorenson on Sorenson's porch.
and Finnell were friends. However, during defendant's
trial, defendant provided the following testimony regarding
his view of Finnell's disposition:
"[Deputy District Attorney]: You explained that
you've known *** Finnell since first grade. You described
him as wayward, nighty, you have a soft spot for him. Was he
ever violent? Did you ever know him to be violent?
" [Defendant]: To say the least.
" [Deputy District Attorney]: I don't understand
what that means. Yes, you did know him to be violent?
" [Defendant]: * * * Finnell has always been kind of
violent." [Deputy District Attorney]: Would you
characterize him as unpredictable? "[Defendant]: I'm
sure most people would. I wouldn't characterize him as
unpredictable." [Deputy District Attorney]: How would
you characterize him? "[Defendant]: At times a loose
cannon, more or less. Unstable."
defendant testified during his trial that Sorenson's
former romantic partner and Finnell had been "kind of
promiscuous together," and that had, at some point,
caused tension between Sorenson and Finnell.
Or.App. 647] Prior to the burglary, defendant and Finnell
were drinking together at defendant's house. That day,
Finnell was "under the influence of a lot of alcohol and
a lot of drugs." During defendant's trial, Finnell
testified about himself that he was using drugs and was high
that day because he is "always on drugs and high. And
usually drunk." Later that day, defendant brought
Finnell to Sorenson's apartment.
they arrived at the apartment, KM was sleeping on the couch.
Neither Sorenson nor ZM were present. KM awoke to people
talking and saw defendant and Finnell in the apartment with
her. The door to Sorenson's apartment did not
"really lock" and they had, apparently, let
themselves in. Defendant "started to tell [KM] that
there were these people [who] were trying to hurt his family,
hurt his wife, and that [he] needed * * * [ZM's]
help." KM then left the apartment to go to a
neighbor's house to try to find a phone so that she could