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State v. Endicott

Court of Appeals of Oregon

March 20, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
CHARLES LEO ENDICOTT, Defendant-Appellant.

          Submitted November 30, 2017

          Douglas County Circuit Court 12CR0923FE; Frances Elaine Burge, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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 privilege.

         Affirmed.

         [296 Or.App. 645]TOOKEY, J.

         Defendant 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.[1] 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.

         When we 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.

         Sorenson 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.

         Sorenson 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 testimony:

"[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."

         Sorenson 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.

         Defendant 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."

         Additionally, 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.

         [296 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.

         When 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 call ...


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