108 June 1, 2023 No. 14
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JOHN MICHAEL HALEY,
Respondent on Review.
(CC 19CR61540, CC 19CR50469);
(CA A173760 (Control), A173761)
(SC S069671)
On review from the Court of Appeals.*
Argued and submitted March 3, 2023, at Willamette
University College of Law, Salem, Oregon.
Erica Herb, Assistant Attorney General, Salem, argued
the cause and filed the briefs for petitioner on review. Also
on the briefs were Ellen Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Rond Chananudech, 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.
Before Flynn, Chief Justice, and Duncan, Garrett,
DeHoog, Bushong, Justices, and Balmer and Baldwin,
Senior Judges, Justices pro tempore.…
BUSHONG, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
______________
* On appeal from the Multnomah County Circuit Court, Heidi H. Moawad,
Judge. 319 Or App 629,
511 P3d 440 (2022).
… James, J., did not participate in the consideration or decision of this case.
Cite as
371 Or 108 (2023) 109
110 State v. Haley
BUSHONG, J.
The issue presented in this criminal case is whether
a college administrator’s office within a university building
is a “separate unit” in the building, thereby making the office
a “separate building” for purposes of the second-degree burglary statute, ORS 164.215. Defendant was convicted under
that statute after he entered the administrator’s office and
stole a briefcase. On appeal of that conviction, the Court of
Appeals concluded that the office was not a “separate unit,”
and thus not a “building” as defined in ORS 164.205(1),
because the administrator shared the room’s “function and
occupation” with the university. State v. Haley, 319 Or App
629, 633-34,
511 P3d 440 (2022).
We disagree with that court’s interpretation and
application of the statute. Whether a space within a building
is considered a “separate unit” as defined in ORS 164.205(1)
depends on the structure, occupancy, function, physical layout, and appearance of both the building as a whole and the
space at issue. Here, there was sufficient evidence in the
record for a factfinder to find, based on those factors, that
the administrator’s office was a “separate unit” as defined
in ORS 164.205(1) for purposes of the second-degree burglary statute. The trial court did not err in denying defendant’s motion for judgment of acquittal on that charge.
Accordingly, we reverse the Court of Appeals’ decision and
affirm the trial court’s judgment.
I. FACTS AND PROCEEDINGS BELOW
Because the issue on review arises from the trial
court’s denial of defendant’s motion for judgment of acquittal, we describe the evidence in the light most favorable to
the state. See State v. Reed, 339 Or 239, 243,
118 P3d 791
(2005) (“In reviewing a trial court’s order denying a motion
for judgment of acquittal, this court views the evidence in
the light most favorable to the state to determine whether
a rational factfinder could have found the elements of the
crimes in question beyond a reasonable doubt.”).
Defendant entered Waldschmidt Hall on the
University of Portland’s campus. The hall has five floors.
The first two floors are generally open to the public and
Cite as 371 Or 108 (2023) 111
contain offices frequented by students and others; the offices
include the registrar’s office, the financial aid office, and
the admissions office. The remaining three floors contain
administrative and executive offices. Defendant went to the
third floor and approached Room 307, which is the office
for the Associate Director for Major Gifts. A plaque outside
the door bears the office number and Associate Director’s
name and title. Room 307 is fully enclosed; it has four walls
and a door. The room contains a desk, computer, bookcase,
and three chairs. The room’s door locks automatically when
shut. But, on the day that defendant approached the room,
the Associate Director had propped the door open and left
the room unoccupied. While he was away, defendant entered
the room and stole a briefcase.
The state charged defendant with second-degree
burglary, among other crimes. Count 2 of the indictment
alleged that defendant “did unlawfully and knowingly enter
and remain in a building located at UNIVERSITY OF
PORTLAND, WALDSCHMIDT[ ] HALL ROOM 307” with
the intent to commit a crime therein. The case was tried
to the court, and, at the close of the state’s case-in-chief,
defendant moved for a judgment of acquittal on the burglary
charge, asserting that the state had failed to present sufficient evidence that Room 307 was a “separate building” for
the purposes of the burglary statutes. The trial court denied
that motion. Later, when delivering its verdict, the trial
court explained its reasoning. It stated that, under Court of
Appeals case law, a “separate unit” is “a constituent and isolable member of some more inclusive whole.” See, e.g., State v.
Rodriguez, 283 Or App 536, 542,
390 P3d 1104, rev den,
361
Or 543 (2017) (so stating). The court then applied that test
and concluded that Room 307 was a “separate unit.” Based
on that conclusion, the court convicted defendant of second-degree burglary.
Defendant appealed, assigning error to the trial
court’s denial of his motion for judgment of acquittal. The
Court of Appeals reversed, concluding that, “[b]ecause Room
307’s function and occupation were shared with that of the
parent building, it was not a separate unit, and the trial
court erred in denying defendant’s [motion for judgment of
112 State v. Haley
acquittal] on the burglary conviction.” Haley, 319 Or App at
633-34. We allowed the state’s petition for review.
II. STANDARD OF REVIEW AND
PARTIES’ ARGUMENTS
When, as here, a trial court denies a defendant’s
motion for judgment of acquittal based on an interpretation
of a statute, we review the denial for errors of law. See State
v. Thompson, 328 Or 248, 256,
971 P2d 879, cert den,
527
US 1042 (1999) (trial court’s interpretation of a statute is
reviewed for legal error).
To resolve the parties’ dispute in this case, we must
interpret ORS 164.205(1), which defines “building” to include
“separate units” within a building. When interpreting a
statute, we attempt to discern the intent of the legislature
that enacted it. ORS 174.020; see also State v. McDowell, 352
Or 27, 30,
279 P3d 198 (2012) (explaining that “[o]ur task
is to discern what the legislature contemplated” in enacting the statute at issue). To determine that intent, we give
primary weight to the statutory text in context, with appropriate additional weight accorded to any relevant legislative
history. City of Portland v. Bartlett,
369 Or 606, 610,
509 P3d
99 (2022); State v. Gaines,
346 Or 160, 171-72,
206 P3d 1042
(2009). Context includes other provisions of the same statute and other related statutes, PGE v. Bureau of Labor and
Industries,
317 Or 606, 611,
859 P2d 1143 (1993), as well as
case law interpreting the statute at issue and related statutes, including earlier versions of those statutes, SAIF v.
Walker,
330 Or 102, 109,
996 P2d 979 (2000).
We begin with a brief statutory summary, to further
assist in understanding the statutory issue and the parties’
arguments. Under ORS 164.215(1), a person commits second-degree burglary if the person “enters or remains unlawfully
in a building with intent to commit a crime therein.” ORS
164.205(1) defines “building” for purposes of that statute,
in part, as follows: “Where a building consists of separate
units, including, but not limited to, separate apartments,
offices or rented rooms, each unit is, in addition to being a
part of such building, a separate building.” Thus, under that
definition, a “building” includes “separate units” within a
building. Id. And each separate unit within a building is
Cite as
371 Or 108 (2023) 113
treated as “a separate building,” in addition to being part of
the building it occupies.
Id. As noted, ORS 164.205(1) also
includes a list of examples, stating that the term “separate
units” “includ[es], but [is] not limited to, separate apartments, offices or rented rooms[.]” Id.; see also State v. Kurtz,
350 Or 65, 75,
249 P3d 1271 (2011) (“Typically, statutory
terms such as ‘including’ and ‘including but not limited to,’
when they precede a list of statutory examples, convey an
intent that an accompanying list of examples be read in a
nonexclusive sense.”).
The key interpretive question in this case, then,
is the meaning of “separate units” in ORS 164.205(1). The
state contends that the test for determining whether an
office within a building is treated as a “separate unit” under
that statute should be whether the office is “isolable and
structurally distinct” from the building that it occupies.
Defendant, by contrast, contends that a “separate unit”
requires a “possessory or ownership interest” that is different from the building that it occupies. As noted above, the
Court of Appeals’ test focused on the office’s “function and
occupation,” concluding that an office that shares the same
broad function and occupation as the main structure is not
a “separate unit.” Haley, 319 Or App at 633-34.
We decline to adopt any of those tests. Instead, as
explained below, we conclude—based on the text, context,
and legislative history of ORS 164.205(1)—that whether a
space within a building is a “separate unit”—and, thus, a
“building” for purposes of the burglary statutes—depends
on the structure, occupancy, function, layout, and appearance of both the space and the building containing that
space.
III. ANALYSIS
A. Text
We begin with the text of ORS 164.205(1), which,
again, defines “building” for purposes of the burglary and
criminal trespass statutes as follows:
“ ‘Building,’ in addition to its ordinary meaning, includes
any booth, vehicle, boat, aircraft or other structure adapted
for overnight accommodation of persons or for carrying on
114 State v. Haley
business therein. Where a building consists of separate
units, including, but not limited to, separate apartments,
offices or rented rooms, each unit is, in addition to being a
part of such building, a separate building.”
Thus, the term “building” includes (1) structures that fall
within the “ordinary meaning” of “building”; (2) any other
structure “adapted for overnight accommodation of persons
or for carrying on business therein”; and (3) “separate units”
within those two types of structures.
This case concerns the meaning of the third type
of “building”: a “separate unit.” As we will explain, the text
of the definition of “building” provides several indications of
what the legislature intended “separate unit” to mean.
First, the sentence at issue states, “Where a building consists of separate units, … each unit is … a separate
building.” ORS 164.205(1) (emphasis added). The introductory phrase of that sentence indicates that, in the legislature’s view, not all buildings consist of “separate units.” And,
because most buildings contain rooms, it further indicates
that, in the legislature’s view, not all rooms are “separate
units.”
Second, the legislature used the term “separate.”
The definition of the word “separate,” when used as an adjective as it is in this statute, includes:
• “set or kept apart : standing alone : detached, isolated,”
• “not shared with another : individual, single,”
• “existing by itself : autonomous, independent,” and
• “dissimilar in nature or identity : distinct, different.”
Webster’s Third New Int’l Dictionary 2069 (unabridged ed
2002). All those meanings are similar. They overlap with
each other and can all describe parts of a building. As discussed next, together, they provide clues about what constitutes a “separate unit.”
The first meaning—“set or kept apart : standing
alone : detached, isolated”—indicates that, to be a “separate unit,” a unit must be physically separate from other
units; that is, it must be physically isolable from other units.
Cite as 371 Or 108 (2023) 115
The second meaning—“not shared with another : individual, single”—indicates that the unit must be used or occupied by some person or persons to the exclusion of others.
That suggests that whether a unit is used or occupied by
a single person or a discrete group of persons to the exclusion of others is relevant to whether a unit is a “separate
unit.” The third meaning—“existing by itself : autonomous,
independent ”—reinforces that indication and suggests that
a unit’s function or purpose is relevant when determining
whether it is a “separate unit.” That is because the definition of “autonomous” includes “undertaken or carried on
without outside control : self-contained.”
Id. at 148. Finally,
the fourth meaning—“dissimilar in nature or identity : distinct, different ”—indicates that the unit must have its own
identity that is distinct or different in layout or appearance
from other units. To be a “separate unit,” then, a unit must
be recognizable as separate from other units. See id. at 659
(defining “distinct,” as relevant here, as “capable of being
easily perceived”).
The legislature’s use of the term “unit” provides a
third indication of the intended meaning of “separate unit.”
Notably, the legislature did not provide that, if a building
contains separate rooms, each room is itself a building.
Instead, it used the term “separate unit.” The relevant definition of “unit” is as follows:
“a single thing or person or group that is a constituent and
isolable member of some more inclusive whole : a member
of an aggregate that is the least part to have clearly definable separate existence and that normally forms a basic
element of organization within the aggregate <the township in the usual [unit] of government> <the family as a
basic [unit] of society>.”
Id. at 2500.
The legislature’s use of the term “unit” is significant. A “unit” is a part of a whole, but it is not just any part;
it is a particular type of part. It is “a single thing or person
or group” that is an “isolable member of some more inclusive
whole”; it is “a member of an aggregate that is the least part
to have clearly definable separate existence and that normally
forms a basic element of organization within the aggregate.”
116 State v. Haley
Id. (emphases added). Thus, a “unit” is not necessarily the
smallest part of an aggregate. As the example of the family as a basic unit of society illustrates, a “unit” itself can
have individual members. A “unit” can be, for example, a
group of persons or a group of rooms. What constitutes a
“unit” depends on how the aggregate is divided and organized. Thus, the legislature’s choice of the term “unit” shows
that the legislature did not necessarily intend for all rooms,
or all groups of rooms, in a building to be “separate units.”
Whether a room, or a group of rooms, constitutes a “separate
unit” depends on how the building itself is divided and organized, which can depend on the purpose or function of the
building. Thus, if a building has multiple rooms, each room
could be—but is not necessarily—a “separate unit” within
the building.
That understanding is supported by a fourth aspect
of the text of the definition of “building”: the examples of
“separate units” included in the definition. Again, the second sentence of the definition states, “Where a building consists of separate units, including, but not limited to, separate
apartments, offices or rented rooms, each unit is, in addition
to being a part of such building, a separate building.” ORS
164.205(1) (emphasis added).
The first example is “separate apartments.” Apartments can be single rooms—a studio apartment, for example—
or they can have multiple rooms, including rooms that are
physically isolable, like most bedrooms and bathrooms.
An apartment building can have multiple “separate apartments,” each consisting of one or multiple rooms. The fact
that the legislature chose “separate apartments” as an example shows that (1) separate occupancy can define a “separate
unit”; and (2) not all rooms in a building are deemed to be
“separate units.” It shows that the legislature intended that,
to be a “separate unit,” a room must be both (1) “separate”—
that is, physically isolable, used or occupied by a single person or discrete group of persons, self-contained, and recognizable as its own unit—and (2) a “unit”—in that, like an
apartment in an apartment building, it must be the “least
part to have a clearly definable separate existence” from the
other units that “normally forms a basic element of organization within the aggregate” of all the units. Webster’s at 2500.
Cite as 371 Or 108 (2023) 117
Notably, the legislature also included “rented rooms”
as examples of “separate units.” The inclusion of “rented
rooms” indicates that the legislature was aware that not all
rooms within a building should necessarily be considered
“separate units.” The legislature’s choice of “rented rooms”
as an example is consistent with the view that whether a
room is a “separate unit” depends, in part, on how the building containing the room is divided and organized. It makes
sense for a rented room, such as a hotel room, to be a “separate unit” for the purposes of the burglary statutes; but it
would not make sense for the bathroom within a hotel room
to be a “separate unit” for those purposes because the bathroom is not rented separately from the hotel room.
The examples of “apartments” and “rented rooms”
inform the other example of “separate units” listed in the
statutory definition set out in ORS 164.205(1): “offices.”
“Office” is a term that can be used to describe both groups
of rooms as well as individual rooms. The dictionary defines
“office,” in part, as follows:
“[A] place where a particular kind of business is transacted
or a service is supplied[, such] as a : a place in which the
functions (as consulting, record-keeping, clerical work) of a
public officer are performed[;] b : the directing headquarters of an enterprise or organization[;] … [or] c : the place
in which a professional … (as a physician or lawyer) conducts … professional business[.]”
Webster’s at 1567. That definition suggests that an “office”
can be a single room where business is conducted, but it
also may consist of multiple rooms. For example, one of the
meanings—“the directing headquarters of an enterprise or
organization”—may consist of multiple rooms or even multiple buildings. Physicians and lawyers may conduct business in offices with one room or with multiple rooms. A “law
office” is an office, as is a “lawyer’s office.” Thus, on its own,
the term “office” does not resolve whether every room where
a person does business is a “separate unit” for the purposes
of the burglary statutes. But the context of the term indicates that whether a room where a person does business is
a “separate unit” depends on whether it is akin to “apartments” and “rented rooms.” See State v. McCullough, 347 Or
350, 361 n 8,
220 P3d 1182 (2009) (under the textual canon
118 State v. Haley
of construction noscitur a sociis, “the meaning of words may
be indicated or controlled by those with which they are associated” (internal quotation marks omitted)).
In sum, from the text of the definition of “building”
set out in ORS 164.205(1), we can draw several conclusions.
First, the legislature did not intend to treat every room as
a “building” for the purposes of the burglary statutes. It did
not so provide; instead, it provided that “[w]here a building
consists of separate units, … each unit is … a separate
building.” ORS 164.205(1) (emphases added). Second, to be
“separate,” a room (or a combination of rooms) must be physically isolable, used or occupied by a single person or discrete group of persons, self-contained, and recognizable as
its own unit. Third, to be a “unit,” a room (or a combination
of rooms) must be the “least part to have a clearly definable
separate existence” and be in the form of the “basic element
of organization” within the building. Fourth, to be a “separate unit,” a room (or a combination of rooms) must be akin
to “separate apartments” or “rented rooms.”
B. Context
The context of ORS 164.205(1) sheds some additional
light on the legislature’s intent. “Building” is defined in ORS
164.205(1) for purposes of the offenses of burglary and criminal trespass in ORS 164.205 to 164.270. In this case, defendant was charged with second-degree burglary—a Class C
felony—which is defined by ORS 164.215. Under that statute, a person commits second-degree burglary if the person
“enters or remains unlawfully in a building with intent to
commit a crime therein.” ORS 164.215(1). A person commits
first-degree burglary—a Class A felony—if the person violates ORS 164.215 and the building is a “dwelling.” ORS
164.225.
The burglary statutes parallel the criminal trespass statutes. A person commits second-degree criminal trespass—a Class C misdemeanor—when the person
“enters or remains unlawfully in a motor vehicle or in or
upon premises.” ORS 164.245(1). A person commits first-degree criminal trespass—a Class A misdemeanor—when
the person enters or remains unlawfully in, among other
things, a “dwelling.” ORS 164.255.
Cite as 371 Or 108 (2023) 119
“Premises” is defined in ORS 164.205(6) to include
“any building and any real property, whether privately or publicly owned.” And “dwelling”—defined in ORS 164.205(2)—
means “a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a
person is actually present.” Thus, the statutory definitions of
both “premises” and “dwelling” for purposes of the criminal
trespass and burglary statutes include a “building,” which,
as noted above, includes “separate units” within a building.
As a result, a person could commit a criminal trespass or a burglary if the person enters or remains unlawfully in a separate unit within a building. And, as explained
next, “enter or remain unlawfully” is defined for purposes of
these offenses in ORS 164.205(3) by reference to the person’s
authority to be in the forbidden space.1
The burglary and criminal trespass statutes do not
expressly specify the mental state required to hold a person criminally culpable for violating those statutes. But,
to establish the element of “enter or remain unlawfully” as
required for criminal liability for committing the offenses of
burglary or criminal trespass, the person charged with the
offense must have acted with the required culpable mental
state. See ORS 161.095(2) (providing that criminal liability
requires proof that a person “acts with a culpable mental
state with respect to each material element of the offense
that necessarily requires a culpable mental state”).
Generally, if the operative statute does not specify the required culpable mental state, culpability is established “only if a person acts intentionally, knowingly, recklessly or with criminal negligence.” ORS 161.115(2). Without
1
ORS 164.205(3) provides:
“ ‘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;
“(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.”
120 State v. Haley
deciding what culpable mental state is required to establish
the element of “enter or remain unlawfully”—an issue not
presented in this case—we note that the minimum culpable
mental state (criminal negligence) would seem to at least
require that a person charged with criminal trespass or
burglary “fails to be aware of a substantial and unjustifiable risk” that entering or remaining in the space at issue
is not authorized. See ORS 161.085(10) (defining “criminal
negligence”).
And in any event, in the context of determining
whether a person “enters or remains unlawfully” in a “separate unit” of a “building,” the physical layout and appearance of the “separate unit” in a building must put a person
charged with criminal trespass or burglary on notice that
there is a substantial and unjustifiable risk that the person
is entering or remaining in a “separate unit.” See, e.g., State
v. Plowman, 314 Or 157, 160,
838 P2d 558 (1992), cert den,
508 US 974 (1993) (“The terms of a criminal statute must
be sufficiently explicit to inform those who are subject to it
of what conduct on their part will render them liable to its
penalties.” (Internal quotation marks omitted.)).
C. Case Law
As part of considering text and context, we also consider “case law interpreting the statute at issue and related
statutes, including earlier versions of those statutes.” Walker,
330 Or at 109. We summarized the history and evolution of
Oregon’s burglary statutes in State v. Henderson,
366 Or 1,
455 P3d 503 (2019). There, we noted that Oregon’s original
statutory definition of burglary, adopted in 1864, provided
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
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 ….”
366 Or at 8-9 (quoting General Laws of Oregon, Crim Code,
ch XLIV, § 542, p 535 (
Deady 1845-1864)). We also noted
that, between 1864 and 1970, “Oregon’s burglary statute
Cite as
371 Or 108 (2023) 121
had changed in three respects: eliminating the elements of
night time entry, presence of a person, and actual breaking.”
Id. at 9-10. Those changes “reflected a significant expansion
from the common-law understanding of burglary.” Id. at 10.
The 1971 Legislative Assembly enacted a revised
Criminal Code, which included the definition of “building”
in ORS 164.205(1) at issue here. See Or Laws 1971, ch 743,
§ 135 (essentially unchanged since that time). That revised
Criminal Code, enacted on recommendations from the
Criminal Law Revision Commission (Commission), “further
expand[ed] the scope of burglary.” Henderson, 366 Or at 10.
Broadly defining “building” for purposes of criminal trespass and burglary was consistent with that expansion.
D. Legislative History
The legislative history sheds some additional light
on the legislature’s intent in defining the term “building”
in ORS 164.205(1) to include “separate units” and, in particular, “offices” within a building for purposes of the burglary and criminal trespass laws. As noted above, the legislature enacted that statute as part of the 1971 revision
of the Criminal Code proposed by the Commission. Records
of the Commission and its subcommittees “provide a rich
source for determination of the drafters’ intent.” State v.
Garcia, 288 Or 413, 416,
605 P2d 671 (1980). We generally
“assume 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);
see Henderson,
366 Or at 10 (stating the same); see also
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 definition of “building” was first proposed and
approved without discussion at a May 1968 subcommittee
meeting; that definition is essentially identical to the definition currently found in ORS 164.205(1). Minutes, Criminal
Law Revision Commission, Subcommittee No. 1, May 27,
1968, 7; Article 15, Preliminary Draft No. 1, Criminal Law
122 State v. Haley
Revision Commission, May 1968.2 That definition was briefly
discussed at subsequent full Commission and subcommittee meetings. See, e.g., Minutes, Criminal Law Revision
Commission, July 19, 1968, 7 (where Commission Director
Donald Paillette advised that the definition of “building”
was “intended to cover structures of a nature that would
be likely to have people in them for extended periods of
time”).
At a November 1970 subcommittee meeting, Judge
Virgil Langtry—on behalf of the University of Oregon
Alumni Association—raised the issue of sit-ins, suggesting that the statutory scheme encompassing burglary and
criminal trespass could be utilized to terminate student or
nonstudent disturbances on university property through
the “unlawfully entering or remaining” requirement of
criminal trespass. Tape Recording, Criminal Law Revision
Commission, Subcommittee No. 1, Nov 19, 1970, Tape
22, Side 1 (statement of Judge Virgil Langtry); Minutes,
Criminal Law Revision Commission, Subcommittee No. 1,
Nov 19, 1970, 1-2. At that same meeting, Commission
Director Paillette asked whether, for the purposes of unlawfully entering or remaining on premises, the draft should be
made more specific with respect to offices within buildings,
to reflect that a license to remain in one part of a building did not provide a license to go elsewhere in the building. Tape Recording, Criminal Law Revision Commission,
Subcommittee No. 1, Nov 19, 1970, Tape 22, Side 2 (statement of Commission Director Donald Paillette); Minutes,
Criminal Law Revision Commission, Subcommittee No. 1,
Nov 19, 1970, 8. Commissioner Spaulding responded that
that issue was already covered by the definition of “building”
in subsection (1). Tape Recording, Criminal Law Revision
Commission, Subcommittee No. 1, Nov 19, 1970, Tape 22,
Side 2 (statement of Commissioner Bruce Spaulding). That
2
Preliminary Draft No. 1 proposed defining “building” for purposes of the
offenses of burglary and criminal trespass as follows:
“(1) ‘Building,’ in addition to its ordinary meaning, includes any vehicle, boat, aircraft, or other structure adapted for overnight accommodation
of persons or for carrying on business therein. Where a building consists of
separate units, including, but not limited to, separate apartments, offices,
or rented rooms, each unit is, in addition to being a part of such building, a
separate building.”
Cite as 371 Or 108 (2023) 123
discussion suggests that entering or remaining in a university administrator’s office located within a university
building without authorization would be a criminal trespass
under the intended definition of “premises,” which included
any “building and any real property, whether privately or
publicly owned,” because “building” includes all parts of a
building.
The Commission ultimately approved the definition
of “building.” Minutes, Criminal Law Revision Commission,
Dec 10, 1970, 3; see also Commentary to Criminal Law
Revision Commission Proposed Oregon Criminal Code,
Final Draft and Report § 135, 143 (July 1970) (including the
proposed definition of “building” within the statute without
amendment). It noted that the “type of premises at which
the amendments were aimed”—including amendments
to the “unlawfully entering or remaining” and “premises”
definitions—was intended to include the following:
“[B]uildings such as the State Capitol, a university building or a county courthouse where the premises were open
for certain purposes and the public was privileged to use
them for those purposes, recognizing that certain portions
of the premises were designed to be subjected to a usage
different from other portions.”
Minutes, Criminal Law Revision Commission, Dec 10, 1970,
2; Tape Recording, Criminal Law Revision Commission,
Dec 10, 1970, Tape 2, Side 1 (statement of Commission
Director Donald Paillette).
In addition, the Commission’s commentary to the
proposed code revision states that “building” was meant “to
include those structures and vehicles which typically contain human beings for extended periods of time, in accordance with the original and basic rationale of the crime:
protection against invasion of premises likely to terrorize
occupants.” Commentary § 135 at 143. That suggests an
intent to expand the original crime of burglary to protect
other spaces that could be invaded in such a way as to terrorize the occupants of those spaces in the same way that
homes had been protected.
Moreover, including “offices” within the list of examples of “separate units” reflected the drafters’ recognition
124 State v. Haley
that invasion of an office violates the occupant’s personal privacy, akin to the violation that follows from the invasion of a
“separate apartment” or “rented room.”3 Including “offices”
in the list of “separate units” that would be treated as separate buildings made it unnecessary to be more specific with
respect to separate offices within a building, as Commission
Director Paillette had suggested during the Commission’s
discussion about amending the definition of “enter or remain
unlawfully.” That legislative history suggests that the legislature understood that some buildings—including the State
Capitol, a university building, or a courthouse—may be generally open to the public but may contain separate offices
that are not open to the public.
The history further confirms that the legislature
understood that offices within those buildings may be legally
shared by the occupants and the state, county, or university that owned and controlled the building. For example, a
legislator’s office in the State Capitol—one of the buildings
expressly mentioned in the legislative history—is physically
separate from the common areas of the capitol building. The
office and the capitol are legally owned by the state, but the
office is “separate” from other parts of the capitol in that it
is physically isolable from other parts, is used or occupied
by a single person or discrete group of persons to the exclusion of others, is self-contained, and is distinct from other
parts of the capitol. The legislative history, consistent with
the statutory text and context, confirms that the legislature
would have intended that a person entering a legislator’s
locked office in the capitol without authorization would commit a criminal trespass, and a person who entered without
authorization with the intent to commit theft therein would
commit a burglary. The person would commit those crimes
even though the person may have been authorized to enter
the capitol building and even though the legislator’s office
and the building itself are owned by the state.
3
Although a person may also feel violated if someone enters their room without permission, the legislature chose to draw the line at “rented rooms”—not
simply “rooms”—for purposes of the burglary statutes. ORS 164.205(1) (“separate units” includes, but is not limited to “separate apartments, offices or rented
rooms”). Thus, violating someone’s private space alone is not enough to constitute
a burglary.
Cite as 371 Or 108 (2023) 125
In sum, the legislature broadly defined the nature
of the space that could be unlawfully invaded for purposes of
the burglary and criminal trespass statutes to include entering or remaining in “separate units”—including “offices”—
within a building. The statutory text, read in context and
consistent with the legislative history, reveals that whether
a space within a building was intended to be considered a
“separate unit” within the building—and, thus, a “separate
building”—for purposes of the burglary and criminal trespass statutes depends on the structure, occupancy, function,
layout, and appearance of both the building as a whole and
the space within the building.4
E. Application
Having determined the intended meaning of “separate unit” within a “building,” ORS 164.205(1), we return
to the evidence in this case. Because this case comes to
us on defendant’s appeal of the trial court’s denial of his
motion for judgment of acquittal, we view the evidence in
the light most favorable to the state. Reed, 339 Or at 243. As
described above, the room that defendant entered was Room
307 within Waldschmidt Hall, a five-story building. The
room had four walls and a door that automatically locked
when closed. It was used as a workspace by a single person.
It was separately numbered from other rooms in the building, and a plaque outside the door identified its user by name
and title. It functioned as an office—one of the examples of
4
Our interpretation of ORS 164.205(1) and what it requires is consistent
with the Court of Appeals’ previous construction of the definition of “building”
in Rodriguez, 283 Or App at 540-43. In that case, the defendant was convicted of
first-degree burglary, among other crimes, after taking a firearm and other property from his parents’ locked bedroom in the house where the three of them lived.
On appeal, the issue was whether the bedroom was a “separate unit” within the
house. To resolve the issue, the court looked to the function, occupation, and
physical characteristics of the house and bedroom.
Based on various considerations—including the court’s conclusions that the
bedroom had a function that was inseparable from the purpose of the house; that
the occupation of the bedroom was not exclusive to the defendant’s parents, and
the defendant had permission to enter the room at certain times; and that the
lock on the bedroom door did not change the overall nature or function of the bedroom in a way that made it a separate unit from the rest of the house—the court
determined that the evidence “[did] not support a conclusion that the parents’
bedroom operated as a standalone, self-contained unit from the rest of the house”
and, therefore, the trial court had erred in denying the defendant’s motion for
judgment of acquittal. Id. at 543-44.
126 State v. Haley
“separate units” specified in the statute—for the administrator who typically occupied that room.
Based on that evidence, a reasonable trier of fact
could find that Room 307 was a “separate unit” within
Waldschmidt Hall.5 That is, a factfinder could find that the
room was “separate” from the building itself because it was
physically isolable, was used as an office by one person, was
a self-contained office workspace, and was visibly distinct
from other areas. A reasonable trier of fact could also find
that Room 307 was a “unit” within Waldschmidt Hall. That
is, they could find that Room 307 had a “clearly definable
separate existence” from other areas, that Waldschmidt
Hall was organized into self-contained workspaces, and that
Room 307 was such a workspace occupied by an administrator who used it as his office. Therefore, the trial court did not
err in denying defendant’s motion for judgment of acquittal
on the second-degree burglary charge.
IV. CONCLUSION
We conclude that, for purposes of Oregon’s burglary
and criminal trespass statutes, whether a space within a
building was intended to be considered a “separate unit”
and, thus, a separate “building,” ORS 164.205(1), depends
on the structure, occupancy, function, layout, and appearance of both the building as a whole and the space within
the building. Applying that definition, we further conclude
that the room that defendant entered qualified as a “separate unit” and thus a separate “building,” and, therefore,
that the trial court did not err when it denied defendant’s
motion for judgment of acquittal.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
5
A factfinder also might have concluded, after considering the required factors, that the entire third floor of Waldschmidt Hall—not just Room 307—was a
“separate unit.” Because the state charged defendant with unlawfully entering
one office—Room 307—we need not decide whether a person who has unlawfully
entered separate offices in a portion of a single building that itself could be considered a “separate unit” has committed one or multiple offenses.
