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Trap for the unwary in Oregon's Burglary law

Under Oregon law a person commits the crime of burglary when they: 1) Enter or remain unlawfully in a building or residence, 2) with the intent to commit a crime therein. Most people think of burglary as breaking into a building for the purpose of stealing something. However burglary under Oregon law covers a much wider range of conduct. Unlawful entry cases arise when a person enters premises without the consent or authorization of the owner. A person remains unlawfully when, after entering with permission, they fail to leave after such permission expires or is revoked. It is often said that in either case, an unlawful entry or an unlawful remaining, that a burglary conviction requires a criminal trespass for the purpose of committing a crime. What then is required for criminal trespass you might ask? Confusingly Oregon law defines criminal trespass as (did you guess it?) to "enter or remain unlawfully." It is this circular definition that is at the heart of much of the burglary confusion.

Note that Oregon's definition of entering or remaining unlawfully does not require any sort of "breaking and entering" as people often assume burglary does. Oregon law defines entering or remaining unlawfully generally as "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 or when the entrant is not otherwise licensed or privileged to do so." Many situations are clearly burglarious, for example where there is no license or privilege to enter or remain in the first place: A prowler creeping into someone else's home without permission; entering a business after hours to commit theft. Things get murkier however when some license or privilege to enter or remain existed.

For example, what if a person charged with burglary was lawfully on the premises to begin with? As a start Oregon law provides that entering or remaining on property with the consent of the owner is a defense to burglary. It is equally clear that consent to enter or remain on property that is procured through fraud, threats, artifice or deceit is not valid and will support a burglary conviction based on an unlawful entry. It is also clear that the consent of the property owner can be withdrawn, and if proven will support a burglary conviction for unlawfully remaining.

There are cases however where the license and privilege to enter or remain has not been invalidated or revoked so clearly. In such cases, how does one determine whether or not the scope of the license or privilege to enter or remain has been exceeded? Does it matter if the accused formed the intent to commit a crime before or after coming on or into the premises? Each case is of course factually different, but many judges, prosecutors and defense attorneys believe that a general license or privilege to enter into or upon someone's property never includes permission to act unlawfully once in or upon the property.

Think if you will of being at a neighbor's Super Bowl party. You and other guests have all been invited over to enjoy the game. You and the homeowner have one beer too many and get into a heated argument about which is the better team. You decide to settle the matter with your fists and punch your host in the jaw. Clearly you have committed assault. But have you committed burglary? The homeowner of course did not intend anyone to assault him in his home and would testify that in his mind any such behavior clearly was beyond the scope of his invitation.

Many lawyers take the position that the moment you formed the unlawful intent to strike your host, your otherwise lawful entry into the home was by implication transformed into an unlawful remaining (because no one would invite you over to assault them) and therefore you have committed burglary - an offense far more serious than simple assault under Oregon law. This very issue arose in a recent Oregon Court of Appeals burglary case where the accused argued that because he was allowed entry into a home he could not be convicted of burglary for committing a theft once he was inside. During the trial in the case, in response to the accused's argument, an experienced judge in Multnomah County remarked "When you commit the crime in the house, you revoke any permission you were given to be there." Many judges, prosecutors and even defense attorneys subscribe to this view: That the commission of a criminal act or even the formation of the intent to commit a criminal act automatically converts a lawful presence into an unlawful one. Unfortunately the Court of Appeals did not rule on the Judge's remark, deciding the case on another ground.

However, this all too common view that an otherwise lawful entry or remaining automatically and converts to an unlawful one simply the commission of a crime is likely in error as it transforms the commission of any crime on another's property into a burglary. There is persuasive support for the proposition that Oregon's burglary statute was not intended to sweep so broad. Oregon's definition of to "enter or remain unlawfully" was derived from New York State's definition of the same. While the precise question remains an open one in Oregon, New York Courts have long held that a lawful entry or remaining is not converted to an unlawful one simply upon the formation of an intent to commit a crime or the commission of the crime intended. In analyzing other aspects of Oregon's burglary statutes, Oregon appellate courts have in the past cited the New York Court's decisions with approval. There is no reason to think in this context the reasoning of the New York Courts would be abandoned.

Until the Oregon appellate courts squarely address this issue it remains a trap for the unwary or unsophisticated. The issue must be raised at the trial court level. In cases where the government seeks to argue that a defendant's otherwise lawful presence was automatically and implicitly rendered unlawful by his unlawful act or intent, defense counsel must aggressively seek to educate the prosecutor and the judge, and take steps to preserve this very real issue for appellate review. Too often, defense attorneys acquiesce in this likely erroneous view of burglary.

Andrew M. Kohlmetz

For help with criminal charges regarding burglary, trespassing or other crimes, contact the experienced criminal defense attorneys at Kohlmetz, Steen & Hanrahan, P.C.

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