State v. Haley

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 bur-

glary 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 lay-

out, 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 bur-

glary statute. The trial court did not err in denying defen-

dant’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 acquit-

tal, 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 suffi-

cient 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 isol-

able 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 enact-

ing the statute at issue). To determine that intent, we give

primary weight to the statutory text in context, with appro-

priate 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 stat-

ute 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 stat-

utes, 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 apart-

ments, 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 differ-

ent 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 appear-

ance 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 build-

ing consists of separate units, * * * each unit is * * * a separate

building.” ORS 164.205(1) (emphasis added). The introduc-

tory phrase of that sentence indicates that, in the legisla-

ture’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 adjec-

tive 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 dis-

cussed next, together, they provide clues about what consti-

tutes a “separate unit.”

The first meaning—“set or kept apart : standing

alone : detached, isolated”—indicates that, to be a “sepa-

rate 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 : individ-

ual, single”—indicates that the unit must be used or occu-

pied 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 exclu-

sion 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 defini-

tion of “autonomous” includes “undertaken or carried on

without outside control : self-contained.” Id. at 148. Finally,

the fourth meaning—“dissimilar in nature or identity : dis-

tinct, 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 defi-

nition 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 defin-

able separate existence and that normally forms a basic

element of organization within the aggregate <the town-

ship 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 signifi-

cant. 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 fam-

ily 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 orga-

nized. 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 orga-

nized, 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 sec-

ond sentence of the definition states, “Where a building con-

sists 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.” Apart-

ments 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 apart-

ments,” each consisting of one or multiple rooms. The fact

that the legislature chose “separate apartments” as an exam-

ple 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 per-

son or discrete group of persons, self-contained, and recog-

nizable 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 organiza-

tion 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 build-

ing containing the room is divided and organized. It makes

sense for a rented room, such as a hotel room, to be a “sep-

arate 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 bath-

room 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 headquar-

ters of an enterprise or organization[;] * * * [or] c : the place

in which a professional * * * (as a physician or lawyer) con-

ducts * * * 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 mul-

tiple buildings. Physicians and lawyers may conduct busi-

ness 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 indi-

cates that whether a room where a person does business is

a “separate unit” depends on whether it is akin to “apart-

ments” 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 asso-

ciated” (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 phys-

ically isolable, used or occupied by a single person or dis-

crete 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 “sepa-

rate 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 crim-

inal trespass in ORS 164.205 to 164.270. In this case, defen-

dant was charged with second-degree burglary—a Class C

felony—which is defined by ORS 164.215. Under that stat-

ute, 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 vio-

lates ORS 164.215 and the building is a “dwelling.” ORS

164.225.

The burglary statutes parallel the criminal tres-

pass statutes. A person commits second-degree crimi-

nal 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 pub-

licly owned.” And “dwelling”—defined in ORS 164.205(2)—

means “a building which regularly or intermittently is occu-

pied 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 tres-

pass or a burglary if the person enters or remains unlaw-

fully 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 per-

son 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 spec-

ify the required culpable mental state, culpability is estab-

lished “only if a person acts intentionally, knowingly, reck-

lessly 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 law-

fully 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 autho-

rized 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 unjustifi-

able 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 “sep-

arate unit” of a “building,” the physical layout and appear-

ance 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 con-

sider “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 tres-

pass 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 par-

ticular, “offices” within a building for purposes of the bur-

glary and criminal trespass laws. As noted above, the leg-

islature 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 explana-

tions.” 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 defini-

tion 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 subcommit-

tee 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, suggest-

ing 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 unlaw-

fully 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 build-

ing did not provide a license to go elsewhere in the build-

ing. Tape Recording, Criminal Law Revision Commission,

Subcommittee No. 1, Nov 19, 1970, Tape 22, Side 2 (state-

ment 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 vehi-

cle, 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 uni-

versity 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 build-

ing 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 con-

tain human beings for extended periods of time, in accor-

dance 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 ter-

rorize the occupants of those spaces in the same way that

homes had been protected.

Moreover, including “offices” within the list of exam-

ples of “separate units” reflected the drafters’ recognition

124 State v. Haley

that invasion of an office violates the occupant’s personal pri-

vacy, 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 sepa-

rate 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 legis-

lature understood that some buildings—including the State

Capitol, a university building, or a courthouse—may be gen-

erally 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 univer-

sity 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 exclu-

sion 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 com-

mit 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 with-

out permission, the legislature chose to draw the line at “rented rooms”—not

simply “rooms”—for purposes of the burglary statutes. ORS 164.205(1) (“sepa-

rate 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 enter-

ing 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 tres-

pass 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 “sep-

arate 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 build-

ing, 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 prop-

erty 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 bed-

room 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 adminis-

trator 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 administra-

tor 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 appear-

ance 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 “sep-

arate 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 fac-

tors, 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 con-

sidered a “separate unit” has committed one or multiple offenses.