The opinion
693
Submitted December 10, 2019, affirmed June 30, petition for review denied
October 10, 2021 (368 Or 638)
STATE OF OREGON,
Plaintiff-Respondent,
v.
MAYNOR PEREZ-SALAS,
Defendant-Appellant.
Washington County Circuit Court
17CR80432; A167794
492 P3d 95
Defendant appeals a judgment of conviction for first-degree burglary and
second-degree criminal mischief. The charges were based on an incident in which
defendant broke into his sister’s locked bedroom and damaged some of her cloth-
ing; the two lived in a house rented from their uncle. Defendant assigns error
to the trial court’s denial of his motion for judgment of acquittal (MJOA) on the
burglary charge, contending that the bedroom is not a separate “building” for
purposes of the burglary statute and, therefore, the evidence was insufficient to
convict him of that charge. Held: The evidence was sufficient to establish that
the bedroom is a “building” within the meaning of the burglary statutes where
defendant’s sister paid rent directly to her uncle to live there, without regard to
defendant’s rent obligation; the bedroom was a separately secured, self-contained
physical space; the sister was the exclusive occupant of the bedroom and defen-
dant had no access to it; and the bedroom did not function as a component part of
a building with a single unifying purpose, such as a family residence.
Affirmed.
James Lee Fun, Jr, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Hannah K. Hoffman, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeHOOG, J.
Affirmed.
694 State v. Perez-Salas
DeHOOG, J.
Defendant was convicted of first-degree burglary,
ORS 164.225, and second-degree criminal mischief, ORS
164.354, after he broke into his sister’s bedroom in the
two-bedroom house where they both lived and sprayed liq-
uid bleach on some of her clothing. He appeals, raising a
single assignment of error, namely, that the trial court erred
in denying his motion for a judgment of acquittal (MJOA)
on the first-degree burglary charge. Specifically, defendant
contends that his sister’s locked bedroom in a single-family
home is not a separate “building” or “dwelling” for purposes
of the burglary statutes, and, therefore, the evidence was
insufficient to convict him of that charge. We disagree and,
accordingly, affirm.
To provide context for the dispute, we begin with
the applicable statutes. As relevant here, a person commits
first-degree burglary, a Class A felony, “if the person vio-
lates ORS 164.215 [second-degree burglary] and the build-
ing is a dwelling.” ORS 164.225(1), (2). Second-degree bur-
glary, which is a Class C felony, in turn, is committed “if
the person enters or remains unlawfully in a building with
intent to commit a crime therein.” ORS 164.215(1), (2). ORS
164.205 provides, for purposes of those statutes, definitions
of the terms “building” and “dwelling”:
“(1) ‘Building,’ in addition to its ordinary meaning,
includes any booth, vehicle, boat, aircraft or other struc-
ture 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 apart-
ments, offices or rented rooms, each unit is, in addition to
being a part of such building, a separate building.
“(2) ‘Dwelling’ means a building which regularly or
intermittently is occupied by a person lodging therein at
night, whether or not a person is actually present.”
(Emphasis added.)
In reviewing a trial court’s denial of an MJOA, we
view the evidence in the light most favorable to the state.
State v. Rodriguez, 283 Or App 536, 537, 390 P3d 1104,
rev den, 361 Or 543 (2017). We state the facts in that light.
Cite as 312 Or App 693 (2021) 695
Defendant and his sister, B, lived in a two-bedroom
house that their uncle leased and then rented to them under
an informal agreement. The uncle also used the property for
parking his cars and equipment for his landscaping busi-
ness. The rent amount was shared between defendant, B,
and the uncle.1 B paid her portion of the rent directly to her
uncle. The uncle and/or defendant’s mother paid defendant’s
share.2 The uncle then paid the total amount to his landlord
each month. Defendant and B were responsible for utilities.
Defendant and B shared common areas of the
house, but they each had their own individual bedroom.
The two had a difficult relationship. B’s bedroom had a lock
on it, which she used, and defendant did not have a key.
Defendant was not permitted in B’s bedroom at any time.
At trial, B testified, “My room is my room, his room is his
room.” She also stated, “I never let [defendant] in my room.
He can never be in my room. He’s never allowed to be in my
room, ever.” When asked if she had made that clear to defen-
dant, she testified, “He knows it a hundred percent.” The
siblings’ uncle, who rented them the rooms, also testified
that the bedrooms were meant to be separate.
One day, B came home and discovered that her
locked bedroom had been broken into and there was bleach
on some of her clothing items. Defendant admitted to offi-
cers that he had kicked in the door and sprayed bleach on
B’s clothing.
Defendant waived his right to a jury trial and tried
his case to the court. At the close of the state’s case-in-chief,
defendant moved for judgment of acquittal on the burglary
charge, arguing that B’s bedroom was not “a separate unit
or building from the rest of the house, [and] therefore not
* * * a dwelling under the burglary statute.” The trial court
denied the motion, explaining, in part:
“[T]he question is whether or not there are either rooms
or locations within that dwelling that can be identified
through the facts as separate living spaces, because the
character of the structure is still a dwelling.
1
The record does not disclose the amounts that each was responsible for.
2
The record is not entirely clear, but it appears that defendant typically did
not pay his share of the rent himself.
696 State v. Perez-Salas
“In this case, like other common circumstances, there
are individual rooms that the occupants of the dwelling
identified as their own particular living space or dwelling.
“In this case there is no doubt that the parties lived
as though rooms were individualized units, private units,
and they had an expectation of privacy in those individual
rooms. No dispute on the evidence. The evidence is quite
clear on that.
“Moreover, the circumstantial evidence would suggest
that that’s what the parties intended. The fact that [B]
locked the door, there were no items of clothing, physical
possessions, or any other items that the defendant pos-
sessed that were in [B’s] room, and that he gained access to
her room, allegedly, by forcing the door open, breaking the
doorjamb, would indicate clearly that the parties treated
the individual rooms with an expectation of privacy.”
The court denied defendant’s MJOA “for all those reasons.”
The trial court ultimately found defendant guilty of
first-degree burglary and second-degree criminal mischief.
Defendant appeals, assigning error, as noted, to the denial
of his MJOA.
On appeal, defendant repeats his contention that a
single-family home that is maintained as such is a single
building and that each bedroom is not a separate dwelling
under the burglary statutes. He also advances a second the-
ory, one not presented to the trial court, that, because B was
not the owner of the property, she could not “unilateral[ly],”
by locking her bedroom door, convert the house into a multi-
ple dwelling unit.
The state responds, as it did at trial, that B’s bed-
room was a “rented room,” qualifying as a separate unit or
building under the burglary statutes, see ORS 164.205(1),
and, thus, a dwelling, see ORS 164.205(2).3 The state acknowl-
edges that a locked door alone is not enough to establish that
a bedroom in a house is a separate building, but contends
that a reasonable factfinder could so find in this case based
on the totality of the evidence presented—specifically, that
the room was self-contained, that it was rented individually
3
Defendant does not dispute that, if the bedroom is a building, it is also a
dwelling, in that B regularly slept there. See ORS 164.205(2) (defining dwelling).
Cite as 312 Or App 693 (2021) 697
to B, that she always kept the door locked, and that only B
had physical access to the room. We agree with the state.4
So framed, the question presented by this appeal is
whether a reasonable factfinder could find that B’s bedroom
was a separate unit and, therefore, a separate building,
such that defendant committed first-degree burglary when
he entered or remained in the bedroom with the intent to
commit a crime therein—specifically, second-degree crimi-
nal mischief. That, in turn, depends on the proper construc-
tion of the word “building,” which we review for legal error.
Rodriguez, 283 Or App at 540-41 (“When a trial court’s
denial of a defendant’s motion for a judgment of acquittal
depends on its interpretation of the statute defining the
offense, we review the trial court’s interpretation for legal
error.” (Internal quotation marks omitted.)).
As the parties recognize, our prior decisions—in
particular, Rodriguez—guide the answer in this case. See
State v. Gonzalez-Aguillar, 287 Or App 410, 412, 403 P3d
539 (2017) (“If we have previously construed a statute, and
that construction controls the interpretive question on
appeal, we adhere to our prior construction of the statute
unless we conclude that the prior construction is ‘plainly
wrong.’ ” (Quoting State v. Civil, 283 Or App 395, 406, 388
P3d 1185 (2017).)). In Rodriguez, we confronted the issue
whether the defendant’s parents’ locked bedroom in the
house where defendant and his parents lived was a separate
unit, and therefore a separate building for the purposes of
the burglary statutes. 283 Or App at 539-40. Noting that we
had not addressed the question before except in dictum,5 we
reviewed the legislature’s definition of “building”—including
the ordinary meaning incorporated therein—as well as
our prior cases, and derived several salient characteristics
inherent in the meaning of the term. Id. at 540 n 3, 541-43.
4
Accordingly, we need not consider the state’s alternative argument—that
the record also supports a trespass theory of burglary, specifically, that defen-
dant committed burglary when he exceeded the spatial scope of his license to be
in the house by entering his sister’s room.
5
In State v. Pena, 183 Or App 211, 216, 51 P3d 646 (2002), we stated, in
dictum, that “[t]he question whether a rented room is a separate building turns
on, among other things, physical access, whether the unit is self-contained, and
whether the units are individually rented.” (Internal citations and quotation
marks omitted.) See Rodriguez, 283 Or App at 540 n 3 (noting same).
698 State v. Perez-Salas
Specifically, we held (somewhat obviously given the legisla-
ture’s express definition) that “individual apartments and
separately rented rooms” are considered to be separate
buildings. Id. at 541 (citing ORS 164.205(1); State v. Davis,
261 Or App 38, 48, 323 P3d 276 (2014) (office suite on second
floor of multistory office building was a separate unit within
a building); State v. Handley, 116 Or App 591, 593-94, 843
P2d 456 (1992) (storage lockers in carport of apartment com-
plex rented by different tenants were separate buildings);
State v. Barker/Phelps, 86 Or App 394, 398, 739 P2d 1045
(1987) (separately rented self-contained storage units in a
commercial storage facility were separate buildings)).
We also determined, based on our case law inter-
preting the term, that a significant factor in the determina-
tion is whether the area is “ ‘self-contained from its parent
building, including secure physical access, separate func-
tion, and separate occupation.’ ” Rodriguez, 283 Or App at
541-42 (quoting State v Macon, 249 Or App 260, 264, 278
P3d 29, rev den, 352 Or 342 (2012)); see Macon, 249 Or App
at 265-66 (storage room of a toy store was separate unit
from the store because it had separate physical access, sep-
arate occupancy by employees only, and a separate function
from the rest of the store)). We contrasted Macon with State
v. Jenkins, 157 Or App 156, 969 P2d 1048 (1998), in which
we had determined that the area behind the bar in a tavern
was not a separate building, in part, because of the unse-
cured physical access to the area, but also because the func-
tion of the bar is “ ‘encompassed by, and inseparable from,
the purpose of the tavern.’ ” Rodriguez, 283 Or App at 542-
43 (quoting Jenkins, 157 Or App at 160).
Applying those principles to the facts in Rodriguez,
we concluded that the evidence was insufficient to support a
finding that the parents’ bedroom was a separate unit from
the rest of the house. That was so because (1) there was no
evidence that any rooms in the house “were ‘rented rooms’
or treated by the family as separate apartments,” id. at 541;
(2) the function of the parents’ bedroom was “inseparable”
from the overall function of the house as a family residence,
id. at 543; (3) occupation of the bedroom was not exclusive
to defendant’s parents—defendant had permission to enter
the bedroom at certain times, and the door to the bedroom
Cite as 312 Or App 693 (2021) 699
was left open when his father was home, id. In those circum-
stances, the fact that there was a lock on the bedroom door
did not itself “change the nature or function of the bedroom
so that it became a self-contained, separate unit from the
rest of the house.” Id.
The circumstances in the present case are mark-
edly distinct from Rodriguez. In this case, B paid rent to
live in the house, and she separately paid her portion of the
rent directly to her uncle, without regard to defendant’s
rent obligation. Her bedroom was a separately secured,
self-contained, physical space, and, unlike in Rodriguez,
its occupation was exclusive to her. B kept the door to the
bedroom locked and defendant knew “a hundred percent”
that he did not have permission to enter it at any time. In
further contrast to Rodriguez, defendant in this case did not
have access to the bedroom when the house’s occupants were
home. Instead, as B testified, defendant was “never allowed
to be in [it], ever.” In short, the bedroom functioned entirely
as B’s private space.
There is also nothing in the record to indicate
that the house itself generally functioned as a “family resi-
dence,” of which B’s bedroom was simply a component, as in
Rodriguez. Rather, a reasonable inference from the evidence
is that, although they shared some common areas, defen-
dant and B lived in the house independently. Put another
way, they coexisted in the house, but there is no evidence
that the two shared a “home,” akin to a family residence,
with a single unifying purpose. Considered in the light most
favorable to the state, a reasonable factfinder could find
from this record that B’s rented bedroom was self-contained,
with “secure physical access, separate function, and sepa-
rate occupation” from the rest of the house. See Rodriguez,
283 Or App at 542 (internal question marks omitted); id. at
542-43 (identifying the same as inherent in the meaning of
“building” under ORS 164.205(1)).
We disagree with defendant’s suggestion that a
bedroom in a building “maintained” as a “single-family
home” can never be a separate building. As Rodriguez and
our other case law makes clear, the gravamen of the inquiry
is, instead, whether the room is separate in function and
700 State v. Perez-Salas
purpose from the parent building, such that it “is, in addi-
tion to being a part of such building, a separate building.”
ORS 164.205(1); Rodriguez, 283 Or App at 541-43, Macon,
249 Or App at 264; Jenkins, 157 Or App at 159-60. As dis-
cussed above, that inquiry is satisfied by the evidence here.6
Given the specific circumstances present here, a
reasonable factfinder could find that B’s rented bedroom was
a “building” for purposes of the burglary statutes. Because
defendant does not dispute that if the bedroom was a build-
ing, it was also a dwelling, the evidence was thus sufficient
to support defendant’s conviction for first-degree burglary.
The court did not err in denying defendant’s MJOA.
Affirmed.
6
We reject without discussion defendant’s largely undeveloped argument,
raised for the first time on appeal, that B lacked a cognizable property interest in
the residence. Defendant also states, in a single sentence, that the denial of his
MJOA also violated his due process rights under the Fourteenth Amendment to
the United States Constitution, but he does not explain why that is different from
his primary argument, or why it compels a different answer. We therefore do not
address it.