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State v. Henderson

Supreme Court of Oregon, En Banc

December 27, 2019

STATE OF OREGON, Petitioner on Review,
v.
DUSTIN LEE HENDERSON, Respondent on Review.

          Argued and submitted September 16, 2019

          On review from the Court of Appeals. (CC 15CR32629) (CA A163314) [*]

          Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Stephanie Hortsch, Deputy Public Defender, Offce of Public Defense Services, Salem, argued the cause and fled the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.

         [366 Or. 2] Case Summary:

         Defendant moved for a judgment of acquittal for first-degree burglary on the ground that the evidence could not support a finding that he intended to commit an additional crime in the victim's house at the time of his unlawful entry. The trial court denied the motion and a jury convicted defendant of first-degree burglary and second-degree criminal mischief. Defendant appealed the denial of his motion for judgment of acquittal and additionally argued that the trial court committed clear error by failing to sua sponte give a jury concurrence instruction on the criminal mischief charge. The Court of Appeals reversed, holding that the state was required to prove that defendant had the intent to commit an additional crime at the time that he entered the victim's house and that the evidence was insufficient to support a finding of such intent. The Court of Appeals declined to address defendant's jury concurrence instruction argument.

         Held:

         (1) It was not clear error for the trial court to fail sua sponte to give a jury concurrence instruction; (2) the intent to commit an additional crime required under the burglary statutes, ORS 164.215 and ORS 164.225, must exist at some point during the unlawful presence, but need not be present at the start of the trespass; and (3) the trial court correctly denied defendant's motion for judgment of acquittal on the burglary charge. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

          [366 Or. 3] BALMER, J.

         The question before this court is whether a person commits the crime of first-degree burglary when the person enters a dwelling unlawfully without the intent to commit an additional crime and then develops that intent while unlawfully present in the dwelling. For the reasons set out below, we hold that forming the intent to commit an additional crime while unlawfully present after an initial unlawful entry constitutes first-degree burglary under ORS 164.225(1).

         Defendant and the victim have two children together. Defendant and the victim were formerly in a relationship, but they broke up before the victim moved into the house where the unlawful entry took place. Although the victim previously had allowed defendant to visit their children at her house, defendant had never lived there, and the victim had made it clear to defendant that he was no longer welcome. On the day in question, defendant came to the house and told the victim that he wanted to shower and talk. She refused to let him inside and made sure to lock all the doors and windows before she left for work, fearing that defendant would try to come in while she was away. After the victim left, defendant broke into the house and destroyed a number of the victim's possessions, including a new television and several lamps. He intentionally cut his arm with a knife, bleeding on various pieces of her living room furniture. Defendant sent the victim text messages with pictures of his bleeding arm as well as messages blaming her for problems in his life. Based on those pictures, the victim realized defendant was in her house. The police were called and arrested defendant.

         Defendant was eventually charged with, among other things, first-degree burglary constituting domestic violence and second-degree criminal mischief. At trial, after the state rested, defendant moved for a judgment of acquittal on the burglary charge, on the ground that the evidence could not support a finding that defendant intended to commit an additional crime in the victim's house at the time of his unlawful entry. The trial court denied the motion, and a jury found defendant guilty of both burglary and criminal mischief.

         [366 Or. 4] Defendant appealed, arguing that the trial court erred on two grounds: first, in denying his motion for judgment of acquittal on the burglary charge and, second, in failing to give a jury concurrence instruction on the criminal mischief charge, which, defendant argued, was necessary because the jurors may not have agreed which of the specific instances of criminal mischief defendant had committed. On the first issue, the Court of Appeals reversed defendant's burglary conviction, holding that the state was required to prove that defendant had the intent to commit an additional crime at the time that he entered the victim's house and that the evidence was insufficient to support a finding of such intent. State v. Henderson, 294 Or.App. 664, 432 P.3d 338 (2018). The court remanded for entry of a judgment of conviction for the lesser-included offense of first-degree criminal trespass, ORS l64.255(1)(a). 294 Or.App. at 666. The Court of Appeals declined, however, to reach defendant's jury concurrence instruction argument because it was unpreserved. Id. The state petitioned for review of the burglary holding, and defendant filed a response seeking contingent review of the Court of Appeals' rejection of his jury concurrence argument, which challenged his criminal mischief conviction.

         We allowed review of the state's petition to consider whether a person commits the crime of burglary when the person forms the required intent to commit a crime in addition to criminal trespass while the person is unlawfully present in the building, rather than before or at the time of the unlawful entry.

         First, however, we dispose of defendant's jury concurrence argument. Defendant acknowledged that he did not preserve his jury concurrence instruction argument at trial. He argues, however, that Court of Appeals review was proper because the trial court committed plain error in failing to give such an instruction. As noted, the Court of Appeals ...


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