Offenses Against Property

ORS 164.215
Burglary in the second degree


(1)

Except as otherwise provided in ORS 164.255 (Criminal trespass in the first degree), 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.

(2)

Burglary in the second degree is a Class C felony. [1971 c.743 §136; 1993 c.680 §24]

Notes of Decisions

Under Former Similar Statute (Ors 164.240)

Where the possible maximum sentences for burglary and the crime committed within the burglarized premises were identical, the state could elect on which charges the defendant would be convicted and sentenced. State v. Meyer, 12 Or App 486, 507 P2d 524 (1973)

In the absence of explicit statutory language or legislative history to the contrary, a criminal defendant could not be convicted and sentenced for both burglary and a separate crime committed within the burglarized premises when the intent to commit that separate crime was one element of the burglary charge. State v. Meyer, 12 Or App 486, 507 P2d 524 (1973)

In General

Evidence that defendant and others entered farm shed of another, and that keys were removed from trucks parked therein during occupation of shed, was sufficient to prove that defendant entered shed with intent to commit criminal mischief. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Indictment for burglary, which failed to specify the crime defendant intended to commit when he allegedly unlawfully entered building, was fatally defective. State v. Sanders, 280 Or 685, 572 P2d 1307 (1977)

It was error for trial court to require jury to find defendant not guilty under this section before considering whether defendant was guilty of lesser-included offense of criminal trespass pursuant to ORS 164.245. State v. Ogden, 35 Or App 91, 580 P2d 1049 (1978)

Legislative intent is to more severely punish professional burglars using burglar's tools, and defendant who used beer bottle to smash jewelry store window was improperly convicted of first rather than second degree burglary. State v. Reid, 36 Or App 417, 585 P2d 411 (1978)

Where same violent act, striking victim with 2x4 board, was basis for both first degree robbery and first degree burglary convictions, they merged to extent that same violent act was element of each, and burglary conviction was reduced to second degree, which had no element of physical force. State v. Kline, 37 Or App 899, 588 P2d 675 (1978)

Where defendant allegedly gained entry to premises by use of key given him by store manager for purpose of entering to burn records and inventory of owner, state had to prove person extending permission or invitation was without actual authority to do so and entrant knew or believed there was no such authority. State v. Hartfield, 290 Or 583, 624 P2d 588 (1981)

Defendant was privileged to enter victim's house for limited purposes and reasonable jury could find that defendant exceeded bounds of permission in violation of this section. State v. Felt, 108 Or App 730, 816 P2d 1213 (1991), Sup Ct review denied

Where entry is for purpose of committing more than one crime, only one count of unlawful entry occurs. State v. Sparks, 150 Or App 293, 946 P2d 314 (1997), Sup Ct review denied

Intrusion of instrumentality into building is entry only if intrusion, by itself, is sufficient to accomplish criminal objective for which entry is made. State v. Mayea, 170 Or App 144, 11 P3d 264 (2000)

Where defendant commits single unlawful entry or single act of remaining unlawfully on premises, subsequent commission of multiple crimes allows multiple counts but only single conviction. State v. White, 341 Or 624, 147 P3d 313 (2006)

Unlawful entry and remaining unlawfully on premises are alternative means of committing single crime. State v. White, 341 Or 624, 147 P3d 313 (2006)

Conviction under this section is not categorical burglary offense for purposes of applying federal Armed Career Criminal Act of 1984. U.S. v. Grisel, 488 F3d 844 (9th Cir. 2007); U.S. v. Mayer, 560 F3d 948 (9th Cir. 2009)

Where defendant confesses to violation of this section, evidence of unlawful entry into building is insufficient to corroborate confession. State v. Chatelain, 220 Or App 487, 188 P3d 325 (2008), aff'd 347 Or 278, 220 P3d 41 (2009)

Second degree criminal trespass is, but first degree criminal trespass is not, lesser included offense of second degree burglary. State v. Chatelain, 220 Or App 487, 188 P3d 325 (2008), aff'd 347 Or 278, 220 P3d 41 (2009)

Where entry into business premises is not restricted, limitation on clientele intended to be served by business does not establish that premises are not open to public. State v. Pittman, 223 Or App 596, 196 P3d 1030 (2008)

Entering unlawfully and remaining unlawfully are two alternative methods of meeting "enters and remains unlawfully" element of crime. State v. Pipkin, 245 Or App 73, 261 P3d 60 (2011), aff'd 354 Or 513, 316 P3d 255 (2013)

Conviction of burglary requires at least 10 jurors to agree on which crime defendant intended to commit. State v. Frey, 248 Or App 1, 273 P3d 143 (2012), Sup Ct review denied

To commit crime under this section, defendant must commit criminal trespass for purpose of committing crime. Criminal trespass may begin either when defendant unlawfully enters building or when defendant unlawfully remains in building so court must focus on defendant's intent when trespass begins. State v. J.N.S., 258 Or App 310, 308 P3d 1112 (2013)

Tents set up to house equipment, work benches and employees performing water testing are buildings as used in this section. State v. Lambert, 263 Or App 683, 328 P3d 824 (2014)

Where defendant stole property from house in which defendant had permission to be, defendant's commission of crime did not convert lawful entry into unlawful remaining. State v. Werner, 281 Or App 154, 383 P3d 875 (2016), Sup Ct review denied

Completed Citations

State v. Christensen, 5 Or App 335, 483 P2d 84 (1971), Sup Ct review denied; State v. Frailey, 6 Or App 8, 485 P2d 1126 (1971), Sup Ct review denied; State v. Smith, 6 Or App 47, 487 P2d 90 (1971), Sup Ct review denied

Law Review Citations

In General

17 WLR 226 (1980)

Chapter 164

Law Review Citations

51 OLR 427-637 (1972)


Source

Last accessed
Jun. 26, 2021