671
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted May 25; in Case No. 21CR18248, conviction for second-degree
burglary reversed and remanded for entry of a conviction for second-degree
criminal trespass, remanded for resentencing, otherwise affirmed; in Case No.
20CR34564, affirmed, June 28, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROMAN SERGEYIVICH SHATALOV,
aka Roman Shatalov,
Defendant-Appellant.
Yamhill County Circuit Court
21CR18248, 20CR34564;
A177429 (Control), A177430
Cynthia L. Easterday, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
In Case No. 21CR18248, conviction for second-degree
burglary reversed and remanded for entry of a conviction for
second-degree criminal trespass; remanded for resentencing; otherwise affirmed. In Case No. 20CR34564, affirmed.
672 State v. Shatalov
AOYAGI, P. J.
In this consolidated appeal, defendant raises two
assignments of error regarding the judgment in Case No.
21CR18248. First, he argues that the trial court erred by
failing to enter a judgment of acquittal on Count 1, second-degree burglary, ORS 164.215. Second, he argues that the
trial court erred by failing to enter a judgment of acquittal
on Count 2, identity theft, ORS 165.800. Although defendant did not formally move for a judgment of acquittal, the
charges were tried to the court, and defendant challenged
the legal sufficiency of the evidence in closing argument,
which “is the equivalent of a motion for judgment of acquittal.” State v. Gonzalez, 188 Or App 430, 431,
71 P3d 573
(2003). Defendant’s claims of error are therefore preserved.
As described below, we conclude that the trial court erred
with respect to Count 1, but not Count 2. Accordingly, in
Case No. 21CR18248, we reverse the conviction for second-degree burglary and remand for entry of a conviction for the
lesser-included offense of second-degree criminal trespass,
as well as resentencing, and otherwise affirm. In Case No.
20CR34564, as to which defendant raises no assignments of
error, we affirm.
On review of the denial of a motion for judgment of
acquittal, we view the evidence in the light most favorable to
the state and determine whether a rational factfinder “could
have found that the essential elements of the crime had
been proved beyond a reasonable doubt.” State v. Paragon,
195 Or App 265, 267,
97 P3d 691 (2004). In making that
assessment, we must consider all “reasonable inferences”
favorable to the state that a rational factfinder could make
from the evidence, while recognizing that “speculation and
guesswork” are not allowed. State v. Bivins,
191 Or App 460,
467,
83 P3d 379 (2004).
“[I]t has long been settled law in Oregon that a
party may rely on reasonable inferences arising from circumstantial evidence to establish elements of a criminal
offense.” State v. Hedgpeth, 365 Or 724, 733,
452 P3d 948
(2019). “Ultimately, whether circumstantial evidence is
sufficient to support a given inference is a question of law.”
State v. Simmons,
321 Or App 478, 483,
516 P3d 1203 (2022),
Nonprecedential Memo Op:
326 Or App 671 (2023) 673
rev den,
370 Or 740 (2023). “If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the [factfinder] is given the
opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven
facts.” Bivins,
191 Or App at 467 (internal quotation marks
omitted). When the established facts “support multiple reasonable inferences,” it is for the factfinder to decide which
inference to draw.
Id. However, when competing reasonable
“inferences are in equipoise and there are no other facts
which would aid the jury in deciding whether to draw one
inference or the other[,]” it would “simply invite jury speculation” to submit the question to the jury. State v. Hall,
269
Or 63, 70,
523 P2d 556 (1974). When the evidence is truly
in equipoise, such that there is no evidentiary basis for the
factfinder to choose one inference over the other, “it [is] necessary to say as a matter of law that the state has not met
its burden of proof.”
Id. at 71.
Burglary. A person commits second-degree burglary
by entering or remaining unlawfully in a building with
intent to commit a crime therein. ORS 164.215(1). Here,
defendant was charged with entering or remaining unlawfully in a grocery store with the intent to commit theft.
Defendant contends that he was entitled to a judgment of
acquittal on that charge, because the evidence was legally
insufficient to prove that he intended to commit theft when
he entered the store. The state maintains that the evidence
allowed an inference that he entered with the intent to commit theft.
We state the facts in the light most favorable to
the state. Defendant entered a closed Grocery Outlet store
sometime around 2:00 a.m. through a rear fire door that was
accidentally left unlocked. His entry triggered an audible
alarm. A store employee arrived around 2:30 a.m., entered
through the locked front door, and turned off the alarm. He
went to check the rear fire door and found it unlocked. It was
completely dark inside the store. The employee thought it
was a false alarm but decided to take a quick walk through
the store with his flashlight. When he did, he saw defendant walking in the back corner of the store. Defendant was
674 State v. Shatalov
carrying a flashlight that belonged to the store and was
still in its packaging. The employee told defendant to stop
and that he was going to call the police. Defendant asked
him not to call the police. The employee called 9-1-1. Per
the employee, defendant “was willing to move towards the
front and wait for [the police] there.” Defendant set down the
flashlight when he got to the front of the store. A police officer arrived almost immediately. The officer arrested defendant and searched him for any store items; he did not find
any. After they departed, the employee put the flashlight
that defendant had been using back on the shelf where it
belonged.1
In closing argument, as to the burglary charge,
the prosecutor argued that it was reasonable to infer that
defendant intended to commit theft in the store because he
entered through a back door “in the early morning hours”
and used a flashlight inside the store, which the prosecutor
described as being “as close to a burglary tool that you could
grab in a Grocery Outlet without actually being one of the
ones that’s defined by statute.” The trial court ultimately
found defendant guilty of all charges, stating only that the
evidence was “sufficient” and that it did not have reasonable
doubt as to guilt.
We agree with defendant that the evidence was
legally insufficient to find him guilty of second-degree burglary. The facts of this case are unusual, and the evidentiary record is quite slim. It is not at all clear what defendant’s intentions were in entering a closed grocery store in
the middle of the night through an unlocked door and then
wandering around for up to half an hour after triggering
an audible alarm.2 Certainly, it is possible that he intended
to commit theft. There are other possibilities, however,
such as misguided curiosity, seeking shelter, mental health
1
There is no evidence that the employee had seen defendant discard any
items before the police arrived (other than setting down the flashlight), nor is
there any evidence that the employee found anything out of place after defendant
departed.
2
It is unclear exactly how long defendant was in the store, because there
was no evidence as to exactly when the alarm went off. However, based on the
employee’s testimony, defendant was in the store for somewhere between 10 and
30 minutes. Neither party treats the uncertainty on that point as significant.
Nonprecedential Memo Op: 326 Or App 671 (2023) 675
issues, and the like. Unless every criminal trespass into an
unlocked building containing items that could be stolen is
to be treated automatically as second-degree burglary, there
must be some evidence linking the criminal trespass to an
intention to commit theft. That evidentiary burden may be
minimal in practice, but it requires something. On this particular record, inferring that defendant intended to commit
theft when he entered the building would require impermissible speculation.3 Cf. State v. J. N. S.,
258 Or App 310, 321,
308 P3d 1112 (2013) (holding that it would require impermissible speculation to infer that a person who broke into
a vacant house had the intent to commit theft at the time
of entry, where the only evidence from which that inference
could be drawn was that he found a key in the house and
took it).
Accordingly, we reverse defendant’s conviction for
second-degree burglary, and we remand for entry of a conviction for the lesser-included offense of second-degree criminal trespass. See ORS 164.245(1) (“A person commits the
crime of criminal trespass in the second degree if the person enters or remains unlawfully in a motor vehicle or in
or upon premises.”); ORS 164.205(6) (defining “premises” to
include “any building”); State v. Chatelain, 220 Or App 487,
495-96,
188 P3d 325 (2008), aff’d,
347 Or 278,
220 P3d 41
(2009) (“Because all of the elements of second-degree criminal trespass were expressly set forth in the indictment
for second-degree burglary, the former is a lesser-included
offense of the latter.”).
Identity Theft. A person commits identity theft “if
the person, with the intent to deceive or to defraud, obtains,
possesses, transfers, creates, utters or converts to the person’s own use the personal identification of another person.” ORS 165.800(1); see also ORS 165.800(4)(b) (defining
3
The prosecutor appears to have viewed defendant’s use of a store flashlight
as the key evidence allowing an inference that defendant intended to commit
theft. However, given that the store was completely dark, one would need a flashlight to see regardless of one’s underlying intentions. The employee also used
a flashlight to see while he was inside the store. Defendant did not bring the
flashlight to the store with him. It should be noted that the state never suggested
that defendant intended to steal the flashlight—only that he was using it as
essentially a burglar’s tool.
676 State v. Shatalov
“personal identification”). Here, defendant was charged with
identity theft based on a debit card that was found in his
wallet at the time of arrest. Defendant contends that the
trial court erred in failing to enter a judgment of acquittal,
because the evidence was legally insufficient to prove that
he possessed the card with the intent to deceive or defraud.
When defendant was arrested at the Grocery Outlet,
he had someone else’s debit card in his wallet, the envelope
in which the debit card had been mailed to the cardholder in
his jacket pocket, and a credit card offer for another person
also in his jacket pocket. The debit card had been mailed to
someone at an outdated address, and the credit card offer
had been mailed to someone else in the same apartment
complex. Possession of someone else’s personal identification
“is not by itself probative of an intent to use [the identification] to deceive or defraud.” State v. Martin, 243 Or App 528,
534,
260 P3d 197 (2011). On this record, however, we are
persuaded that the evidence was sufficient to go to the factfinder on whether defendant possessed the debit card with
intent to deceive or defraud. We therefore affirm the conviction for identify theft.
In Case No. 21CR18248, conviction for second-degree burglary reversed and remanded for entry of a conviction for second-degree criminal trespass; remanded for
resentencing; otherwise affirmed. In Case No. 20CR34564,
affirmed.
