Offenses Against Property

ORS 164.225
Burglary in the first degree


(1)

A person commits the crime of burglary in the first degree if the person violates ORS 164.215 (Burglary in the second degree) and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

(a)

Is armed with a burglary tool or theft device as defined in ORS 164.235 (Possession of a burglary tool or theft device) or a deadly weapon;

(b)

Causes or attempts to cause physical injury to any person; or

(c)

Uses or threatens to use a dangerous weapon.

(2)

Burglary in the first degree is a Class A felony. [1971 c.743 §137; 2003 c.577 §10]

Notes of Decisions

Defendant was guilty under this section where he was liable for his accomplice's use of a knife during cafe burglary notwithstanding defendant's exhortations to accomplice not to use knife when surprised by proprietor. State v. Hightower, 17 Or App 112, 520 P2d 470 (1974)

Where defendant's entry exceeded the scope of the owner's permission and, although defendant left a note saying he was borrowing the property, there was evidence that he intended to permanently deprive the owner thereof, the conviction was sustained. State v. McKinney, 21 Or App 560, 535 P2d 1392 (1975)

Defendant committed burglary in the first degree when he unlawfully entered a boat which was a dwelling with intent to steal the entire boat. State v. Spenser, 24 Or App 385, 545 P2d 611 (1976)

Legislative intent in this section 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 were merged to extent that same violent act was element in each, and burglary conviction was reduced to second degree, which required no physical force. State v. Kline, 37 Or App 899, 588 P2d 675 (1978)

Where defendant committed murder in course of burglary, it was improper to impose sentence for burglary in addition to imposition of life sentence for felony murder pursuant to ORS 163.115. State v. Fish, 282 Or 53, 577 P2d 500 (1978)

Ten-year enhancement portion of sentence pursuant to [former] ORS 166.230 following conviction of attempted burglary in first degree was unlawful because being armed with deadly weapon is element of crime of first degree burglary. State v. Shipley, 39 Or App 283, 592 P2d 237 (1979)

Under this section "intent to commit crime" is element of first degree burglary, but instruction that there is disputable presumption that one intends ordinary consequences of one's voluntary acts, that unlawful act is done with unlawful intent and that jury may infer intent in accordance with this rule, did not unconstitutionally shift burden of proof. State v. Stilling, 285 Or 293, 590 P2d 1223 (1979)

To convict under this section does not require proof that defendant had intent to use burglar tool, but only proof that defendant possessed tool described as burglar tool in ORS 164.235. State v. Johnson, 55 Or App 98, 637 P2d 211 (1981), Sup Ct review denied

Jury instruction which permitted jury to infer intent to steal from defendant's presence in building was improper as it would permit essential element of crime of this section to be supplied by inference derived from unlawful entry. State v. Johnson, 55 Or App 98, 637 P2d 211 (1981), Sup Ct review denied

Where defendant, charged with violation of this section, presented evidence that he did not enter building and that he did not enter or remain upon the premises with an intent to commit a crime there, evidence created dispute as to issues of fact which would have enabled jury to find that elements of greater offense had not been proven and failure to instruct on lesser offense of criminal trespass in second degree (ORS 164.245) was error. State v. Naylor, 291 Or 191, 629 P2d 1308 (1981)

Where defendant committed burglary and in course of burglary stole marijuana from premises, it was proper to convict for burglary and possession of controlled substance ([former] ORS 475.992). State v. Shaw, 56 Or App 473, 642 P2d 335 (1982)

In prosecution for burglary with intent to commit menacing, admission of testimony about two telephone calls constituting false report of emergency at victim's residence might indicate animosity on part of defendant toward victims and thus be relevant to defendant's intent, but probative value of evidence was outweighed by its prejudicial impact. State v. Muskopf, 57 Or App 706, 646 P2d 40 (1982)

This section, as applied to defendant, was sufficiently clear in defining "burglar tool" and not unconstitutional for vagueness. State v. Pierce, 69 Or App 620, 687 P2d 161 (1984), Sup Ct review denied

Section describes three situations, any one of which is sufficient, in which burglar armed with burglar's tool will be convicted, so that defendant who picked up hammer after entry was properly convicted. State v. Fuller, 73 Or App 306, 698 P2d 502 (1985)

In prosecution under this section, sign post used by defendant to pry lock from door during burglary was not "adapted" nor "commonly used" for committing forced entry and was not "burglar's tool." State v. Warner, 298 Or 640, 696 P2d 1052 (1985)

Mobile home parked in driveway and used intermittently by guests for sleeping was "dwelling" within meaning of ORS 164.205. State v. McDonald, 77 Or App 267, 712 P2d 163 (1986)

Defendant's first degree burglary conviction in Oregon was properly used for enhancement purposes under Armed Career Criminal Act, 18 USCA §924 (e)(2)(B)(ii). U.S. v. Hunt, 925 F2d 1181 (9th Cir. 1991)

Burglary in common area of fraternity house was committed within dwelling. State v. McKoon, 127 Or App 64, 871 P2d 127 (1994)

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

Violation of restraining order is not commission of "crime." State v. Litscher, 207 Or App 565, 142 P3d 549 (2006)

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. Mayer, 560 F3d 948 (9th Cir. 2009)

For purposes of applying residual clause of Armed Career Criminal Act of 1984, burglary in first degree poses serious potential risk of physical injury to people (1) present in dwelling at time of burglary or (2) in immediate area of building if confrontation occurs. U.S. v. Mayer, 560 F3d 948 (9th Cir. 2009)

That defendant entered and remained unlawfully are not separate elements each requiring agreement of jurors to find defendant guilty, but are interchangeable and overlapping findings that allows jury to conclude defendant acted unlawfully. State v. Pipkin, 354 Or 513, 316 P3d 255 (2013)

Where defendant entered breezeway that is attached to home, covered, permits access to garage and in which homeowners stored food and other items, defendant entered "dwelling" as used in this section and as defined in ORS 164.205. State v. Taylor, 271 Or App 292, 350 P3d 525 (2015)

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

Where defendant, without boat owner's knowledge, was living and sleeping on boat not otherwise used for overnight habitation, defendant's own unlawful habitation of boat was insufficient to convert boat to "dwelling" for purposes of burglary in first degree. State v. Davis, 281 Or App 855, 385 P3d 1245 (2016)

Where defendant, authorized by victim homeowner to enter home for purpose of performing repair work in areas victim told defendant's employer that defendant was expected to access, entered other areas of home from which defendant took property, defendant entered or remained unlawfully in those areas. State v. Angelo, 282 Or App 403, 385 P3d 1092 (2016), Sup Ct review denied

Because "building," as used in this section, is defined more broadly than it is defined for generic burglary and, therefore, criminalizes more conduct than generic burglary, and because building element is indivisible, this section is not categorical match to generic burglary under federal law; accordingly, defendant's previous convictions for first-degree burglary under this section do not qualify as predicate offense under Armed Career Criminal Act, 18 U.S.C. 924, to which mandatory minimum sentence may apply. United States v. Cisneros, 826 F3d 1190 (9th Cir. 2016)

Chapter 164

Law Review Citations

51 OLR 427-637 (1972)


Source

Last accessed
Jun. 26, 2021