State v. McLaughlin

                                      596

  Argued and submitted December 30, 2021; conviction on Count 2 reversed,
                  otherwise affirmed February 16, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 RONALD ALLEN McLAUGHLIN,
                      Defendant-Appellant.
                   Linn County Circuit Court
                     19CR34413; A173537
                                  

     Defendant was convicted of first-degree burglary, ORS 164.225(1), based on
his unlawfully entering R’s house with the intent to commit theft. On appeal,
defendant contends that the trial court erred in denying his motion for judgment of acquittal, because the evidence was legally insufficient to convict him of
burglary. In particular, defendant contends that the evidence was insufficient to
find that he lacked permission to enter R’s house, where the evidence was that
R allowed defendant to come and go freely from the house. The state counters
that the evidence was legally sufficient because R’s permission was implicitly
limited to defendant coming and going for social purposes, not to commit a crime,
such that entering to commit a crime exceeded the scope of defendant’s license.
Held: The trial court erred in denying defendant’s motion for judgment of acquittal. Defendant was free to come and go from R’s house. Although no one intends to
be the victim of a crime when inviting someone into their home, it does not follow
that the invitee’s subjective intent to commit a crime renders the entry a criminal
trespassing and thus a burglary. Because there was no evidence that defendant’s
entry into R’s home was unlawful, beyond the fact that he intended to commit a
crime when he entered, R could be convicted of any crimes that he committed in
R’s house but could not be convicted of burglary.
    Conviction on Count 2 reversed; otherwise affirmed.



    DeAnn L. Novotny, Senior Judge.
   Andrew D. Robinson, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
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 (2022)                           597

  AOYAGI, J.
  Conviction on Count 2 reversed; otherwise affirmed.
598                                    State v. McLaughlin

        AOYAGI, J.
         Defendant was convicted of first-degree burglary,
ORS 164.225(1), based on an incident in which he and
another man went into R’s house to commit theft. On appeal,
defendant argues that the trial court erred in denying his
motion for judgment of acquittal on the burglary charge.
The only issue is whether the evidence was legally sufficient
to prove that defendant unlawfully entered R’s house. For
the following reasons, we agree with defendant that the evidence was legally insufficient to prove that element of burglary. We therefore reverse the burglary conviction.
                          FACTS
         We view the evidence “in the light most favorable
to the state to determine whether a rational trier of fact,
accepting reasonable inferences and reasonable credibility
choices, could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Fuller, 

, 

 (2020) (internal quotations marks and
brackets omitted). We state the facts accordingly. Except as
otherwise noted, all of the relevant facts come from the victim R’s testimony.
        Defendant and R were friends. According to R,
defendant had permission to “come and go” into R’s house as
he pleased. Defendant visited “on a daily basis” and would
enter the house without knocking. It was normal for R to
come home and find defendant there. Defendant “always
watched [R’s] house for [R].” There were other friends who
also had permission to come and go from the house as they
pleased. More generally, there were usually a “bunch of
people” at R’s house. People would show up unannounced.
R would leave people in the house while he went out. R’s
guests brought other people to the house “all the time” and
sometimes let in people while R was out.
       Bates was R’s girlfriend and defendant’s friend. She
had been living at R’s house since July 2018, when she and
R met and began dating. At the end of January 2019, Bates
“went missing,” but her belongings were still at R’s house.
        Anderson was someone whom R had met approximately three times. They were not friends, and Anderson
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had once pulled a gun on R. However, R did not have any
“beef” with Anderson, and, as of early February 2019, he
“would not have objected” to Anderson coming to the house
with defendant and “probably” would have invited him in if
he knew about it. According to Anderson, Anderson started
dating Bates around the time she went “missing” from R’s
house, although there is no evidence R knew about it.
         Strader and R were sort of friends, and defendant
and Strader had been together at R’s house on many occasions. In January 2019, defendant, Anderson, and Strader
were together at a big party at R’s house.
         On February 2, 2019, defendant, Anderson, and Strader
drove to R’s house around midnight. R had gone for a walk
and was not home when they arrived. Strader stayed outside, while defendant and Anderson went into the house.
Inside the house, defendant and Anderson began gathering
personal property. Most of the items belonged to Bates, but
a few items belonged to R. There was a security camera in
R’s bedroom that “everybody” knew about. Footage from the
camera shows Anderson wearing a wig as he and defendant
“bagged” property. Upon returning from his walk, R saw
Strader outside but did not interact with him, and R went
into the house. R heard someone yell, “Get on the ground.”
R ran into a spare bedroom and closed the door. Anderson,
who was carrying a gun, shot through the door, striking R
with a bullet. Defendant, Anderson, and Strader fled the
scene, while R ran to the neighbor’s house for help.
         Defendant was indicted. He waived jury, and the
charges against him were tried to the court. At the close of
the state’s evidence, defendant moved for judgment of acquittal on the burglary charge, which the trial court denied. In
his closing statement, defendant revisited the legal sufficiency of the evidence, including arguing that there was
no evidence that he was not authorized to enter R’s house.
The state argued that there was evidence of unlawful entry
because, although defendant was “allowed in all the time”
to R’s house, “common sense says he wouldn’t have been
allowed in for the purpose of committing crimes.” The state
argued that people were welcome to “hang out” at R’s house
but not to come there to commit crimes and that one could
600                                                    State v. McLaughlin

reasonably infer from the fact that Anderson was wearing a
wig that he and defendant came to R’s house with the intent
to commit a crime, not for social purposes.
          The court found defendant guilty of first-degree
burglary (Count 2). Defendant appeals that conviction. He
argues that he was entitled to a judgment of acquittal on
the burglary charge because the evidence was legally insufficient to establish the element of unlawful entry.1
                                  ANALYSIS
         A person commits first-degree burglary if the person “enters or remains unlawfully” in a building with the
intent to commit a crime therein and, as relevant here, the
building is a dwelling. See ORS 164.215(1) (it is second-degree burglary when a person “enters or remains unlawfully in a building with intent to commit a crime therein”);
ORS 164.225(1) (second-degree burglary rises to first-degree
burglary if the building is a “dwelling,” or if the person is
armed in a certain way, causes or attempts to cause physical
injury to any person, or uses or threatens to use a dangerous weapon).
         The “enter or remain unlawfully” element of burglary derives from criminal trespass, which in turn is rooted
in the common law of property trespass. State v. Hall, 

, 

 (2002). A person commits criminal trespass if a person “enters or remains unlawfully …
in or upon premises.” ORS 164.245(1). “ ‘Enter or remain
unlawfully’ means:
        “(a) To enter or remain in or upon premises when the
    premises, at the time of such entry or remaining, are not
    open to the public and when the entrant is not otherwise
    licensed or privileged to do so;

     1
       Defendant assigns error to the denial of his “motion for judgment of acquittal.” It is clear from his briefing that defendant means his implied motion in
closing statement, not his express motion at the close of the state’s case. See State
v. Gonzalez, 

, 

 (2003) (in a bench trial, arguing in
closing that the evidence is legally insufficient is equivalent to moving for judgment of acquittal). We reiterate the importance of clearly identifying the ruling
being challenged. See ORAP 5.45(4)(a)(i). Here, defendant has adequately done
so, and the state acknowledges as much.
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       “(b) To fail to leave premises that are open to the public after being lawfully directed to do so by the person in
   charge;
      “(c) To enter premises that are open to the public after
   being lawfully directed not to enter the premises; or
      “(d) To enter or remain in a motor vehicle when the
   entrant is not authorized to do so.”
ORS 164.205(3).
         Criminal trespass is the “requisite primary element”
of burglary. State v. Hartfield, 

, 

(1981). At “its essence, burglary comprises three elements:
(1) unlawfully entering or remaining in or upon; (2) a building; and (3) with the intent to commit a crime therein.” State
v. Angelo, 

, 

 (2016), rev den,

 (2017).
         Every burglar thus necessarily intends to commit
some other crime—whether it be theft, assault, or literally
any other crime from the pettiest to the most terrible—but
it is the act of criminal trespass that makes it burglary.
Hartfield, 

 (criminal trespass is “transformed
into a burglary” when the premises invaded are a building
and the trespasser enters or remains with intent to commit a crime). The legislature has adjudged that trespassing
to commit any crime creates risks and harms greater than
either the trespassing itself or the intended crime itself,
warranting a separate crime with more serious penalties
when the two come together. See Tape Recording, Criminal
Law Revision Commission, May 27, 1968, Tape 15, Side 2
(discussing the additional risks and dangers attendant to
burglary). For example, criminal trespass into a dwelling
is a Class A misdemeanor, ORS 164.255(1)(a). Theft ranges
from a Class C misdemeanor to a Class B felony, depending
mostly on the value of items stolen. ORS 164.043 to 164.057.
However, criminal trespass into a dwelling with intent to
commit any degree of theft is burglary, a Class A felony,
ORS 164.225.
         To prove that defendant committed burglary, the
state therefore had to prove not only that defendant entered
or remained in R’s house with the intent to commit a crime,
602                                     State v. McLaughlin

but that he was not “licensed or privileged” to be in R’s
house.
         A person who is invited into a dwelling by the
property owner or a lawful occupant is “licensed or privileged” to enter and does not commit criminal trespass by
entering. State v. Klein, 

, 

(2014). Conversely, a person who lacks license or privilege
to enter a dwelling commits criminal trespass by entering
it. ORS 164.205(3)(a). Further, a person who lawfully enters
may unlawfully remain if the person fails to leave after
license is revoked—see State v. Hopkins, 

, 

 (2020), rev den, 

 (2021) (discussing cases)—or if the person goes into an area of the building where the person is not authorized to go—see Angelo,

 (where a repairman only had permission to be on the first floor of an apartment, he “unlawfully
remained” by going onto the second floor); State v. Evans, 

, 

 (2014) (where a stranger
only had permission to use the bathroom, he “unlawfully
remained” by going into the bedroom); State v. Holte, 

, 

 (2000) (where a person
renting a room knew that he was not allowed in the homeowner’s bedroom, he “unlawfully remained” by going into
that bedroom).
         In this case, defendant was convicted of first-degree
burglary based on his unlawfully entering R’s house with the
intent to commit theft. The question is whether the evidence
was legally sufficient on that point. Defendant does not contest that R’s house is a dwelling, nor does he contest that
there was sufficient evidence to find that he entered with
the intent to commit theft. And, for its part, the state does
not contest that the issue is unlawful entry, not unlawful
remaining. To the extent that the state mentions unlawful
remaining, it is only as an extension of unlawful entering.
That is, in the state’s view, defendant lacked authority to
enter R’s house, and nothing happened after entry to change
his authority, so his initial trespass continued for the duration of the incident.
        Before addressing the state’s main argument regarding unlawful entry, we first dispatch a secondary argument
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that the state makes for the first time on appeal. In its
answering brief, the state argues briefly that defendant
exceeded the scope of his license to enter R’s home by bringing Anderson with him. No legal authority is cited, but the
leading case for such an argument is State v. Endicott, 

, 

, rev den, 

 (2019),
in which we held that there was sufficient evidence of criminal trespass to support a burglary conviction where the
defendant entered the victim’s home with another person
whom the defendant knew was not welcome there. Putting
aside that the state did not make such an argument in the
trial court, we agree with defendant that this case is readily
distinguishable from Endicott. To the extent that defendant
had permission to enter R’s house on his own, this record
would not allow a finding that defendant lacked permission
to enter with Anderson, such that bringing Anderson with
him rendered an otherwise lawful entry unlawful.2
         That brings us to the state’s primary theory of
unlawful entry: that defendant’s entry into R’s house was
“unlawful” because he entered to commit a crime, rather
than to socialize. The state, which bore the burden of proving unlawful entry, acknowledges that defendant was free to
come and go from R’s house. R testified specifically to giving
defendant permission to come and go as he pleased, and he
testified more generally to an essentially open-door policy,
with people coming to the house at any time of day or night,
showing up unannounced, entering the house when R was
not there, remaining in the house after R left, and bringing or letting in other people. The state argues, however,
that the “scope” of defendant’s license was limited to social
purposes. As argued to the trial court (and reiterated on
appeal), the state’s position is that defendant was “allowed
in all the time” to R’s house and that people generally were
welcome to “hang out” at R’s house, but that R’s consent was
implicitly limited to social purposes and excluded criminal
purposes.

    2
      R’s own testimony precludes such a finding. Further, we disagree with the
state’s suggestion that Anderson wearing a wig while in the room with a security
camera permits a reasonable inference that defendant knew that Anderson was
not welcome at R’s house. Such an inference would be too speculative on this
record.
604                                     State v. McLaughlin

         We are unpersuaded by the state’s argument.
Preliminarily, we note that defendant having permission to
enter for “social purposes” is simply another way of saying
that he had permission to enter for “noncriminal purposes,”
as defendant was welcome to come and go even when no
one else was present. With that in mind, we conclude that
allowing a finding of unlawful entry on this record would be
contrary to the burglary statutes and to our construction of
those statutes in State v. Werner, 

, 

 (2016), rev den, 

 (2017), and its progeny.
         As to the statutes, burglary requires that a person
“enters or remains unlawfully in a building with intent to
commit a crime therein.” ORS 164.215(1) (second-degree burglary) (emphases added); see also ORS 164.225(1) (incorporating same element for first-degree burglary). Entering or
remaining unlawfully is a separate element from intending
to commit a crime. Angelo, 

. If intending to commit a crime was enough in and of itself to establish the unlawfulness of the entry or remaining, the word
“unlawful” would approach surplusage. Entering or remaining in a building with the intent to commit a crime would
automatically render the entry or remaining “unlawful,”
except in those narrow circumstances where the property
owner was complicit in the crime, such as if someone invited
a person into their home to engage in illegal drug activity,
to commit a crime against another person, or the like. We
are unpersuaded that the legislature intended the burglary
statutes to sweep up the vast majority of crimes that take
place inside buildings. Cf. Werner, 

 (rejecting the state’s proposed construction of what it means to
“enter or remain unlawfully,” in part because “it would significantly expand the scope of burglary from what it was
before the enactment of the 1971 Criminal Code, when burglary required ‘breaking and entering,’ ” despite there being
no indication in the legislative history “that the legislature
intended to expand the crime to that extent”).
        To make the same point in a different way, it is reasonable to infer that no one wants to be a victim of theft
and that no one welcomes people onto their property with
the intent to invite theft. In virtually any fact scenario, it
would be reasonable to infer that the “scope” of consent to
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 (2022)                           605

enter was not intended to include theft. Were we to approach
“license or privilege” in ORS 164.205(3)(a) with such an
understanding of “scope,” virtually any theft committed in a
building would also become burglary. Indeed, virtually any
crime committed in a building would also become burglary,
unless committed by the owner or tenant.
          Much of our thinking in this case echoes that in
Werner. In Werner, 

, the defendant was
authorized to enter a house to do carpentry work. While
in the house, he stole things. We reversed the defendant’s
conviction for first-degree burglary, concluding that his
motion for judgment of acquittal should have been granted.
We disagreed with the state that, because the defendant’s
license to be in the house was tied to the carpentry projects, he became a trespasser when he “acted outside that
purpose.” 

 (emphasis omitted). We explained that
treating the “commission of a crime in a building, in and
of itself, [as] convert[ing] a lawful entry into an unlawful
remaining” was “inconsistent with the legislature’s definition of burglary” and “would greatly expand the crime of
burglary despite the absence of any indication that the legislature intended such an expansion.” 

. For example, “a person who committed the crime of harassment, ORS
166.065, against another person in a dwelling would be
guilty not only of harassment, a Class B misdemeanor, but
also of first-degree burglary, a Class A felony.” 

.
We found “[n]othing in the criminal trespass and burglary
statutes themselves or in the history of those statutes indicat[ing] that the legislature intended such a result, which
would have significant effects not only on individual defendants, but on the entire criminal justice system, in terms of
the numbers and related costs of prosecution and incarcerations.” 

. We considered it “unlikely that, had
the legislature intended to make such a change, it would
have done so without discussion.” 

. Ultimately, we
“reject[ed] the argument that the commission of a crime on
private property automatically makes a person a trespasser
and, by extension, a burglar.” 

         We have applied Werner on multiple occasions. In
State v. Berndt, 

, 

 (2016),
rev den, 

 (2017), we held that the defendant was
606                                      State v. McLaughlin

entitled to a judgment of acquittal on six counts of second-degree burglary, where he stole personal items from other
people’s lockers at a private gym. The state argued that
the defendant “exceeded the scope of his license to be there,
granted by [the gym] as a consequence of his gym membership, when he broke into other members’ lockers.” Id. at 76.
We rejected that argument, reasoning that it was inconsistent with the legislature’s definition of burglary, failed to
treat burglary as a separate crime, and would expand the
scope of the burglary statute beyond what the legislature
intended. Id. at 77-78.
          Similarly, in State v. Gordon, 

,

 (2016), rev den, 

 (2017), we held that
the defendant was entitled to a judgment of acquittal for
second-degree burglary, where he planted a hidden camera
in a coworker’s office, thus committing the crime of invasion
of personal privacy, but his job gave him access to everyone’s
offices, such that he was not there “unlawfully.” We rejected
the state’s argument that the defendant “acted outside the
scope of his employment by committing an unlawful act” and
thereby “acted outside his license or privilege to be” there.
Id. at 656. And in State v. Pyshny, 

, 

 (2017), we held that the defendant was entitled to
a judgment of acquittal for first-degree burglary, where she
had an “absolute and long-standing privilege to enter” her
mother’s house, because committing a crime against her sister while inside the house did not “automatically terminate”
that privilege.
         We are unpersuaded by the state’s efforts to distinguish Werner and its progeny based on those cases involving alleged unlawful remaining, whereas this case involves
alleged unlawful entering. Remaining in a building with
the intent to commit a crime is burglary only if the person lacks license or privilege to remain in the building, and,
under Werner, license or privilege to remain in a building
does not cease to exist by mere virtue of the fact that the
license was not intended to be used to commit a crime. The
same logic applies to license or privilege to enter a building.
Whether it is a case of unlawful entry or a case of unlawful
remaining, we “reject the argument that the commission of
a crime on private property automatically makes a person a
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trespasser and, by extension, a burglar.” Werner, 

.
         In sum, we agree with defendant that the state’s
view of unlawful entry is untenable. To put it succinctly,
entering a building to commit a crime is not burglary if the
person has permission to be there. The person obviously
may be prosecuted for any crimes committed in the building.
E.g., Gordon, 

 (the defendant was guilty
of invasion of personal privacy, but not burglary, where he
invaded the victim’s privacy in a place that he had license to
be). However, burglary requires criminal trespass, and having criminal intentions does not itself convert a lawful entry
into a criminal trespass, any more than developing criminal
intentions gives rise to a criminal trespass in the form of
unlawful remaining. Because defendant had permission to
come and go freely into R’s house, he could be prosecuted for
any crimes that he committed in the house, but he could not
be convicted of burglary for entering the house with intent
to commit a crime. The trial court erred in denying defendant’s motion for judgment of acquittal on Count 2, first-degree burglary.3
            Conviction on Count 2 reversed; otherwise affirmed.




   3
       Count 1 was dismissed. That portion of the judgment is affirmed.