317 Or. App. 357 - State v. Johnson

                                    357

 Submitted December 30, 2021; conviction for second-degree criminal trespass
    reversed and remanded, remanded for resentencing, otherwise affirmed
                             February 2, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                      BO TYLER JOHNSON,
                       Defendant-Appellant.
                     Polk County Circuit Court
                        18CR23574; A173170

505 P3d 495

Rafael A. Caso, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joseph Callahan, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
PER CURIAM
Conviction for second-degree criminal trespass reversed
and remanded; remanded for resentencing; otherwise affirmed.
358 State v. Johnson

PER CURIAM
Defendant was convicted of second-degree theft and
second-degree criminal trespass. He appeals, raising two
assignments of error related to the way the trial court
instructed the jury on the criminal trespassing charge. The
state argues that the error, if any, is harmless. We conclude
that the trial court did err, and that the error was not harmless. Accordingly, we reverse and remand defendant’s conviction for criminal trespassing.
The trial court instructed the jury, as relevant here,
that to “enter or remain unlawfully” means “to enter or
remain in or upon premises when the premises are not open
to the public or when the entrant is not otherwise licensed
or privileged to do so.” (Emphasis added.) Defendant had
requested that the jury be instructed that it had to find
both that the premises were not open to the public, and that
defendant was not otherwise licensed or privileged to enter
or remain. Defendant argues on appeal that the trial court
erred by giving the instruction it did, and by refusing to give
the requested instruction.
In response, the state does not argue that the
instructional rulings were correct. Instead, it argues only
that, if the court erred, the error was harmless. It contends
that, in light of the evidence in this case, if the jury concluded that defendant knew either that the premises were
not open to the public, or that he was not otherwise licensed
or privileged to enter or remain, then it would have found
both, because the issue turned on whether or not he heard
certain statements. If he heard the statements, then he
would have known both that the premises were not open to
the public and that he was not otherwise licensed to enter or
remain.
We agree with defendant that the instruction the
court gave was erroneous. State v. Collins,

179 Or App 384, 393

39 P3d 925

 (2002) (The Oregon Supreme Court has previously construed “ ‘or’ in [ORS 164.205] subsection (3)(a) as
being conjunctive. Under the rule of prior construction, that
reading is conclusive.”). Further, in light of the record as a
whole, we cannot say that the error had little likelihood of
affecting the verdict. See State v. Davis,

336 Or 19, 32

, 77
Cite as

317 Or App 357

 (2022)

359 P3d 1111

 (2003) (An error is harmless if there is “little likelihood” that it affected the verdict.). Accordingly, we reverse
and remand the criminal trespassing conviction.
         Conviction for second-degree criminal trespass
reversed and remanded; remanded for resentencing; otherwise affirmed.