1
Argued and submitted September 16; decision of Court of Appeals affirmed in
part and reversed in part, judgment of circuit court affirmed December 27, 2019
STATE OF OREGON,
Petitioner on Review,
v.
DUSTIN LEE HENDERSON,
Respondent on Review.
(CC 15CR32629) (CA A163314) (SC S066367)
455 P3d 503
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.
En Banc
On review from the Court of Appeals.*
Rolf C. Moan, Assistant Attorney General, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
______________
* Appeal from Multnomah County Circuit Court, Thomas M. Ryan, Judge.
294 Or App 664,
432 P3d 338 (2018).
2 State v. Henderson
Stephanie Hortsch, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the brief for respondent on review. Also on the brief was
Ernest G. Lannet, Chief Defender.
BALMER, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
affirmed.
Cite as 366 Or 1 (2019) 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.
4 State v. Henderson
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 P3d 338 (2018). The court remanded for entry of a judgment of conviction for the lesser-included offense of first-degree criminal trespass, ORS 164.255(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 rejected that argument without discussion.
Defendant renews the plain error argument in this court.
In general, “[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in
the lower court.” ORAP 5.45(1). However, an appellate court
Cite as 366 Or 1 (2019) 5
“may, in its discretion, consider a plain error.”
Id. A claimed
error is “plain” if (1) it is an error of law; (2) it is obvious,
not reasonably in dispute; and (3) it appears on the face of
the record. State v. Gornick,
340 Or 160, 166,
130 P3d 780
(2006). We review the Court of Appeals’ determination of
whether or not an error is “plain” for legal error.
Id. at 167.
Here, as noted, defendant argued that the trial
court was required to give a jury concurrence instruction
because the state presented three separate instances of
criminal mischief—breaking the television, breaking the
lamps, and bleeding on the furniture—but charged defendant with only one count of criminal mischief. Defendant
argues that that error influenced the verdict because some
jurors could have found one factual occurrence while rejecting others, and vice versa. The state’s theory as argued at
trial was that defendant damaged multiple pieces of property during one, single act of criminal mischief—not that
defendant committed a distinct act of criminal mischief for
every piece of property damaged. Defendant cites no case for
the proposition that it was clear error for the trial court to
fail sua sponte to give a jury concurrence instruction in such
a scenario. Even assuming error, the error was not “plain.”
We turn to the question of the intent required under
the burglary statute. That statute provides that a person
commits the crime of burglary “if the person enters or
remains unlawfully in a building with intent to commit a
crime therein.” ORS 164.215(1) (emphasis added). The state
asserts that the text of the statute, coupled with its legislative history, supports the state’s position that a defendant
need only develop the requisite intent to commit an additional crime at some point during the course of a criminal
trespass.1 Here, the state argues, even if defendant did
not intend to commit an additional crime at the time that
he unlawfully entered the house, he developed that intent
while he unlawfully remained there, and that was sufficient to constitute burglary. In the state’s view, burglary is
1
The state argues in the alternative that there was, in fact, sufficient evidence to demonstrate that defendant intended to commit criminal mischief inside
the house at the time he entered unlawfully. Because we agree with the state on
its primary argument that such a showing is not required, we do not reach the
merits of its alternative argument.
6 State v. Henderson
committed (1) if the person has the intent to commit the
additional crime at the time of the unlawful entry, or (2) if
the person develops the intent while unlawfully present—
that is, unlawfully “remaining”—after either entering
unlawfully or after a lawful entry followed by the revocation
of permission to be on the property. In other words, the state
argues, the statute requires only that the unlawful presence
on the property—the criminal trespass—be accompanied at
some point by the intent to commit the additional crime.
Defendant claims that the statute requires that the
intent to commit an additional crime exist at the beginning
of the trespass. Thus, under defendant’s interpretation, to
commit burglary a person must intend to commit an additional crime either at the time of the unlawful entry or at
the time of the unlawful remaining—that is, at the point
when the person’s initially lawful presence became unlawful. Defendant argues that “[a] person’s continued presence
in a building after unlawfully entering does not constitute
‘remaining unlawfully’ as prohibited by the burglary statutes.” Thus, as applicable to this case, defendant contends
that he did not “remain unlawfully” within the meaning of
the statute and that his intent to commit criminal mischief
was insufficient to support his burglary conviction.
To resolve this question of statutory interpretation,
we first turn to the text of the statutes. State v. Gaines, 346
Or 160, 164,
206 P3d 1042 (2009). Oregon’s modern burglary
statutes were adopted as part of the 1971 overhaul of the
Oregon Criminal Code.2 Those statutes currently read as
follows:
“[A] person commits the crime of burglary in the second
degree if the person enters or remains unlawfully in a
building with intent to commit a crime therein.”
ORS 164.215(1).
“A person commits the crime of burglary in the first degree
if the person violates ORS 164.215 and the building is a
dwelling ….”
2
Both of those statutes are unchanged from the versions passed in 1971,
except that both now refer to a “person” rather than using male pronouns.
Cite as 366 Or 1 (2019) 7
ORS 164.225(1). Read together, those statutes provide that
a person commits first-degree burglary “if the person enters
or remains unlawfully in a building with intent to commit a
crime therein,” ORS 164.215(1), and the building is a dwelling. ORS 164.225(1). Although we have decided a number of
cases involving ORS 164.215(1), we have not addressed the
precise question raised in this case: whether to be guilty of
burglary a defendant must have the intent to commit an
additional crime at the initiation of the trespass, or whether
that intent may be developed during the course of an ongoing trespass.
Here, the Court of Appeals adhered to earlier decisions from that court holding that “there must be a temporal
connection between the defendant’s intent to commit a crime
and the initiation of the defendant’s trespass.” Henderson,
294 Or App at 669 (quoting State v. McKnight,
293 Or App
274, 276,
426 P3d 669, rev den,
363 Or 817 (2018)); see also
Henderson,
294 Or App at 669 (“Specifically, the requisite
‘intent to commit a crime therein’ must be present at the
start of the defendant’s unlawful trespass, whether that
trespass consisted of an initial unlawful entry or an unlawful remaining after an initial lawful entry.” (Internal quotes
and citation omitted; emphasis in original.)). The Court of
Appeals held that the state was required to show that defendant had the intent to commit an additional crime prior to
entering the victim’s house and that it had failed to do so.
Henderson,
294 Or App 664.
The state argues that the text of the statute itself
shows the Court of Appeals’ interpretation to be incorrect.
Burglary can be committed “if the person enters or remains
unlawfully in a building with intent to commit a crime
therein.” ORS 164.215(1) (emphasis added). In the state’s
view, the statute plainly means that if the unlawful entry or
remaining is “with”—that is, accompanied by—the intent to
commit a crime, the requirements of the statute are met. The
statute simply requires that the unlawful entry or remaining co-exist with the requisite intent; it does not require
that the intent be present at the start of the unlawful entry
or remaining. The state also points to the use of the word
“or” in the statute and asserts that burglary can be proved
by showing that the intent was present either at the time
8 State v. Henderson
of an unlawful entry or at the time of an unlawful remaining. Finally, the state argues that an unlawful “remaining”
under ORS 164.215(1) almost always occurs after an unlawful entry (and continues until the person leaves the property
or is given permission to remain), although an unlawful
remaining also can occur after a lawful entry where permission to be on the property has been revoked.
Defendant counters that the statutory text is ambiguous as to whether the intent to commit a crime must exist
at the initiation of the trespass. The burglary and criminal
trespass statutes, he argues, were amended as part of the
1971 Criminal Code revision for the specific purpose of adding the “remains unlawfully” wording. That amendment,
defendant contends, responded to circumstances where a
person lawfully entered property, but failed to leave when
permission to be on the property was revoked. He argues
that the legislature intended to criminalize such “unlawful remaining” but did not intend to “broaden the definition of criminal trespass to eliminate the requirement that,
to obtain a burglary conviction, the state must prove that
the act constituting criminal trespass was accompanied by
a contemporaneous intent to commit a crime.” The state
responds that the statute does not impose—and the legislature did not intend the statute to impose—such a strict
temporal limitation on the formation of intent.
Before further evaluating the textual and other
arguments of the parties, we digress briefly to discuss the
evolution of the burglary statutes in Oregon prior to the 1971
revisions. The definition of burglary in the United States
has been subject to much alteration by both legislatures and
courts over the centuries. See Helen A. Anderson, From the
Thief in the Night to the Guest Who Stayed Too Long: The
Evolution of Burglary in the Shadow of the Common Law, 45
Ind L Rev 629, 629 (2012) (describing how “[b]urglary began
evolving from the common law crime almost as soon as Lord
Coke defined it in 1641”). Oregon’s burglary statute also has
evolved. Our state’s original statutory definition of burglary
was adopted in 1864 and read as follows:
“If any person shall break and enter any dwelling house in
the night time, in which there is at the time some human
Cite as 366 Or 1 (2019) 9
being, with intent to commit a crime therein; or having
entered with such intent, shall break any such dwelling
house in the night time, … such person shall be deemed
guilty of burglary ….”
General Laws of Oregon, Crim Code, ch XLIV, § 542, p 535
(
Deady 1845-1864). This court interpreted that same statute in 1935—unchanged—to require that the state “prove
beyond a reasonable doubt … that, at the time of the
breaking and entering, defendants had an intent to steal
therein or commit some felony therein.” State v. Luckey,
150
Or 566, 570,
46 P2d 1042 (1935).
In the century following the publication of the
Deady Code, the statute changed little. In 1953, it provided
that:
“Any person who breaks and enters any dwelling house
with intent to commit a crime therein, or having entered
with such intent, breaks any dwelling house … is guilty
of burglary ….”
Former ORS 164.230 (1953). Like many other states, by this
time Oregon’s definition of the crime of burglary had begun
to move further away from its common law predecessor. See
State v. Keys, 244 Or 606, 615,
419 P2d 943 (1966) (noting
such a movement). Absent by that time was the requirement
that the breaking and entering take place at night or that
“some human being” be physically present in the dwelling
at the time of the breaking and entering. Oregon also had
joined other states in expanding the scope of “breaking
and entering” by establishing that “[e]very unlawful entry
of a dwelling house with intent to commit a crime therein,
is a breaking and entering of the dwelling house, within
the meaning of ORS 164.230.” Former ORS 164.220 (1953).
See also Anderson, 45 Ind L Rev at 644 (noting that only
“[t]welve jurisdictions retain breaking as an element, …
and in most, it has been judicially interpreted to mean little more than unlawful entry”). It was understood that that
change “enlarge[d] the common-law understanding of the
element of constructive breaking in the crime of burglary
to include ‘every unlawful’ entry.” Keys,
244 Or at 615. In
sum, between 1864 and 1970, Oregon’s burglary statute
had changed in three respects: eliminating the elements of
10 State v. Henderson
night time entry, presence of a person, and actual breaking.
Like the changes to the burglary statutes adopted in other
states, those changes reflected a significant expansion from
the common-law understanding of burglary.
The 1971 Legislative Assembly enacted a revised
criminal code on the recommendations of the Criminal
Law Revision Commission, further expanding the scope of
burglary. That revision produced the statute—essentially
unamended today—applicable in this case. As we have noted
previously, “[c]arefully kept records of the proceedings of the
Commission and of its subcommittees were preserved and,
accordingly, provide a rich source for determination of the
drafters’ intent.” State v. Garcia, 288 Or 413, 416,
605 P2d
671 (1980). In general, this court “assume[s] in the absence
of other legislative history that the Legislative Assembly
accepted the commission’s explanations.” State v. Woodley,
306 Or 458, 462,
760 P2d 884 (1988). The commentary that
accompanied the commission’s ultimate recommendations
also provides a source of legislative history and the intent
of the drafters. State v. Carpenter,
365 Or 488, 497 n 4,
446
P3d 1273 (2019) (“When evaluating statutes developed by
the Criminal Law Revision Commission, we look to both the
commentary and the discussions that preceded the adoption
of the final draft as legislative history for the resulting laws.”).
The commission considered the burglary statutes
on a number of occasions, but, over the course of that consideration, the parts of the statutes relevant to the question
presented here changed very little. From the first proposed
draft to the commission’s final recommendation ultimately
enacted by the 1971 legislature, the proposals established
that burglary in the second degree occurred when a person
“enter[ed] or remain[ed] unlawfully in a building with the
intent to commit a crime therein.” Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 136, 144 (July 1970). The definition of first-degree burglary was changed a few more times, but none of
those changes were related to the interpretive issue that we
deal with in this case.
Summarizing the burglary provisions of the revised
criminal code, the commission’s director stated that the
Cite as 366 Or 1 (2019) 11
proposed statutes consistently “represent[ed] a significant
departure from the traditional requirement of a breaking and entering” and established that no “preconceived
intent to commit a crime would need to exist for burglary
to lie.” Tape Recording, Criminal Law Revision Commission
Subcommittee No. 1, May 27, 1968, Tape 15, Side 2 (statement of Donald Paillette); Minutes, Criminal Law Revision
Commission, May 27, 1968, 8. But, Paillette stated, the proposed statutes were not changing as much as it might appear
because the “individual who would be prosecuted under this
statute for burglary by remaining unlawfully is the one who
has committed a crime in there.”
Id. Likewise, the drafters
clarified that the sections as drafted meant that “[w]hether or not [a defendant] had intent to commit a crime when
he entered the building is immaterial.” Tape Recording,
Criminal Law Revision Commission, July 19, 1968, Tape 9,
Side 1 (statement of Donald Paillette); Minutes, Criminal
Law Revision Commission, July 19, 1968, 7. That clarification
is echoed throughout various other commission meetings as
well as in commentary that the commission presented to the
legislature: “Also eliminated is the requirement of proving
that the intruder had the intent to commit the crime at the
time of the entering.” Commentary § 136 at 145.
With that background, we return to our consideration of the text, context, and legislative history of the current burglary statute, ORS 164.215(1). We readily conclude
that the state has the better argument that the 1971 revision broadened the prior burglary statutes by eliminating
the existing requirement of “unlawful entry of a dwelling
house, with intent to commit a crime therein ….” Former
ORS 164.220 (1969) (defining “breaking and entering”)
(emphasis added); see former ORS 164.230 (1969) (using that
definition of breaking and entering in defining “burglary”).
As the state argues, the 1971 text, still in effect today,
requires only that the person “enters or remains unlawfully
in a building with intent to commit a crime therein.” ORS
164.215(1) (emphasis added). As commission director Donald
Paillette pointed out, under the revised text, it was “immaterial” whether the person had “intent to commit a crime
when he entered the building.” Tape Recording, Criminal
Law Revision Commission, July 19, 1968, Tape 9, Side 1
12 State v. Henderson
(statement of Donald Paillette); Minutes, Criminal Law
Revision Commission, July 19, 1968, 7. That textual conclusion is strongly supported by the clear statement in the
commentary that the revision “eliminated … the requirement of proving that the intruder had the intent to commit
the crime at the time of entering.” Commentary § 136 at 145.
And, as noted, Paillette had explained, during commission
hearings, that the revision to the burglary statute would
eliminate the need to prove a “preconceived intent to commit
a crime” at the time of entry. Tape Recording, Criminal Law
Revision Commission Subcommittee No. 1, May 27, 1968,
Tape 15, Side 2 (statement of Donald Paillette); Minutes,
Criminal Law Revision Commission, May 27, 1968, 8.
Defendant has another argument, however. He concedes that the 1971 legislature intended to dispense with
the requirement that a defendant have an intent to commit
another crime at the time of entry, but argues that the legislature relaxed that requirement only for cases in which
the defendant entered lawfully but remained unlawfully. He
then asserts that “remains unlawfully” and “enters unlawfully” are two “distinct, nonoverlapping ways by which a
defendant can commit the trespass underlying the burglary
charge.” From that, he concludes that the state can prove
burglary by showing a person’s intent to commit an additional crime either (1) at the time of the unlawful entry or
(2) at the time the person’s presence became unlawful after
an initial lawful entry. He nevertheless contends that the
1971 amendments did not extend the reach of the burglary
statute so far as to apply to a person who enters a dwelling
unlawfully and, while unlawfully present in the dwelling,
develops the intent to commit an additional crime.
Defendant’s argument is not well taken. In addition
to the text of ORS 164.215(1), which defines the crime as
including “remain[ing] unlawfully in a building with intent
to commit a crime therein,” and the legislative history discussed above, we directly addressed defendant’s argument
in State v. Pipkin, 354 Or 513,
316 P3d 255 (2013). There,
we rejected the idea that “unlawfully entering” and “unlawfully remaining” are discrete statutory elements and held
instead that they are “alternative and sometimes complementary ways of proving a defendant’s unlawful presence in
Cite as
366 Or 1 (2019) 13
a dwelling.”
Id. at 523. Moreover, we elaborated that when
an unlawful entry occurs, that is not the end of the criminal
trespass: “Almost every person who enters private property
unlawfully will also remain there unlawfully.”
Id. at 522.
We concluded that, “because unlawfully entering on private
premises will almost always entail unlawfully remaining
there as well, a person can commit burglary by entering
unlawfully or remaining unlawfully or by entering and
remaining unlawfully.”
Id. at 523 (emphasis added).
The discussion above demonstrates that a person
trespasses by unlawfully entering and remaining on private premises, or by entering lawfully and then remaining
unlawfully. The additional element that raises trespass
to burglary—the intent to commit an additional crime
“therein”—must exist at some point during the unlawful
presence; in contrast to common-law burglary and to Oregon
statutes before 1971, however, that intent need not be present at the start of the trespass.3
We return to the facts of this case. Defendant does
not dispute that he was not licensed or privileged to be
in the victim’s house, nor does he claim that the evidence
would not permit a jury to find that he developed the intent
to commit the crime of criminal mischief while unlawfully
present in the victim’s house. Defendant’s sole argument
3
Most other courts have reached the same conclusion. The United States
Supreme Court, for example, recently held that under the generic definition of
burglary that it had articulated in previous cases, a “remaining-in burglary
occurs when the defendant forms the intent to commit a crime at any time while
unlawfully remaining in a building or structure.” Quarles v. United States, ___
US ___, ___, 139 S Ct 1872, 1875,
204 L Ed 2d 200 (2019) (emphasis in original). The Court noted that burglary statutes have “long since departed from the
common-law formulation,”
id. at ___,
139 S Ct at 1876-77, ultimately holding that
“for burglary predicated on unlawful entry, the defendant must have the
intent to commit a crime at the time of entry. For burglary predicated on
unlawful remaining, the defendant must have the intent to commit a crime
at the time of remaining, which is any time during which the defendant
unlawfully remains.”
Id. at ___,
139 S Ct at 1878 (emphasis added). The Supreme Court also noted that
the consensus position among state appellate courts was that “remaining-in”
burglary occurs “when the defendant forms the intent to commit a crime at any
time while unlawfully present in the building or structure,”
id. at ___,
139 S Ct at
1878 (emphasis in original), and that of the courts addressing the issue, at least
18 had adopted the “at any time” interpretation, while only three—including the
Oregon Court of Appeals—had adopted the narrower interpretation.
Id. at ___,
139 S Ct at 1878 n 1.
14 State v. Henderson
is that the state was required to prove that he formed the
intent to commit criminal mischief prior to entering the
victim’s house and that it failed to so prove. As the foregoing analysis makes clear, however, the proper inquiry is
not whether defendant had the requisite intent at the onset
of the trespass, but rather whether defendant developed an
intent to commit an additional crime at any point during
the course of the trespass. Because defendant committed
criminal trespass by unlawfully entering and remaining
in the victim’s house and because defendant developed the
intent to commit an additional crime—and did commit an
additional crime—while unlawfully present in the house,
the trial court correctly denied defendant’s motion for judgment of acquittal on the burglary charge.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is affirmed.
