State v. Davis
| Decision Date | 26 October 2016 |
| Docket Number | A158964 |
| Citation | 385 P.3d 1245,281 Or.App. 855 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Lonie Charles DAVIS, Jr., Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Cecil A. Reniche–Smith, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
Defendant appeals from a judgment of conviction for multiple crimes, including burglary in the first degree, ORS 164.225 (Count 1). Defendant assigns error only to the trial court's denial of his motion for judgment of acquittal on Count 1. That count charged defendant with committing first-degree burglary by unlawfully entering and remaining in a dwelling with the intent to commit criminal mischief. "Dwelling" is a statutorily defined term and, in defendant's case, required the state to prove that the small boat that defendant entered was "regularly or intermittently * * * occupied by a person lodging therein at night." ORS 164.205(2). At issue in this appeal is whether evidence of defendant's own occupancy of that boat, the Amy M, was, standing alone, sufficient to show that the boat was a "dwelling." We conclude that, in this case, it was not, and reverse defendant's conviction for first-degree burglary.
When reviewing a trial court's denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state to determine whether a rational trier of fact could find every element of the crime beyond a reasonable doubt. ORS 136.445 ; State v. Hall , 327 Or. 568, 570, 966 P.2d 208 (1998). We state the following facts according to that standard.
The events that gave rise to this case occurred on a December morning at the Warrenton Marina, a public marina owned by the City of Warrenton. Defendant, who recently had lived on a boat at the marina, and who frequently hung out there, was seen boarding various docked boats. The marina's harbormaster called 9–1–1 and reported that he "just got a call that [defendant] was breaking into boats." While on the phone with the 9–1–1 operator, the harbormaster said that he just saw defendant "break into another one" and that defendant was "freaking out." The Warrenton Police Department and the Clatsop County Sheriff's Office responded. When the officers arrived, defendant was inside the Amy M, a boat docked at the marina that defendant did not own or have permission to be aboard. Defendant at first refused to come out of the Amy M. Eventually, a sheriff's deputy, Walker, convinced defendant to leave the boat.
When he emerged, however, defendant immediately dodged past the waiting police officers and jumped to another part of the dock. He continued to talk to Walker and taunt the other officers as Walker attempted to convince defendant to surrender. Defendant later climbed on to a neighboring boat and, after some time, surrendered to the police.
Defendant's conversation with Walker was recorded by a video camera on Walker's uniform. During that conversation, defendant made several statements about having previously been on the Amy M. First, defendant told Walker "I've been on this boat more times than you can count." Second, after Walker told defendant, "You unlawfully entered a boat that's not yours," defendant replied, Third, defendant told Walker, "I sit in there many times," and, later, 1
Defendant was charged with two counts of burglary in the first degree, two counts of burglary in the second degree, and one count of criminal trespass in the second degree. The state called Walker, as well as other witnesses, and played the video from Walker's body-worn camera for the jury. At the conclusion of the state's case-in-chief, defendant moved for a judgment of acquittal on all counts. As relevant, defendant argued that, on Count 1, the state presented insufficient evidence that the boat was a dwelling. Specifically, defendant said, "Your Honor, legally speaking, [the Amy M] is no dwelling." Defendant contended that "in no way [was the Amy M] anything that anybody lodged in."
Rather, defendant argued that the state's evidence showed that the boat was uninhabitable and that his statements that he had stayed there many times were not credible.
The state argued in response that The state added that its evidence showed that the boat had "bedding mattresses, a sink, a microwave, everything that's in there to make that a livable space." The state asserted that defendant "said that he'd stayed there many, many times, which definitely under the Oregon law makes that a dwelling that had been recently occupied."
As relevant, the state also defended a separate count of first-degree burglary, Count 2, with respect to defendant's alleged conduct on a different boat called the American. The state argued that, on that count, the evidence was sufficient to show that the separate and abandoned American was a dwelling despite the state's admission that it presented no evidence that anyone had lived or stayed overnight in that boat. The trial court asked, as related to the American, "[J]ust the mere fact that [the American] contains lodging capability, are you suggesting that means it's a dwelling?" The state agreed that it was making that argument. The state also acknowledged, however, that "there is some case law that talks about trying to prove that it had [been occupied] at some point."
The trial court then granted defendant's motion for judgment of acquittal on the charge of first-degree burglary on Count 2, determining that the state presented insufficient evidence that the American was a dwelling because "there was no evidence that [the American] was ever used as lodging." The court told the state that it would be allowed to proceed on Count 2, as to defendant's alleged conduct on the American, on the lesser-included charge of burglary in the second degree. Burglary in the second degree, as discussed below, does not require as an element of proof that the defendant enter into a "dwelling" but only that the defendant enter a "building," a term defined statutorily to include boats. ORS 164.215(1) ; ORS 164.205(1). The trial court then denied defendant's motions for judgment of acquittal on all other counts, including Count 1, the charge of first-degree burglary of the Amy M that forms the basis for this appeal. The trial court denied the motion without additional explanation.
Shortly after, defendant again raised the issue of whether the Amy M was a dwelling:
At the conclusion of the trial, defendant was found guilty on Count 1 of first-degree burglary of the Amy M and on additional counts not relevant to the legal issue in this appeal.
As noted, defendant assigns error only to the denial of the motion for judgment of acquittal on Count 1. Defendant argues on appeal that the trial court erred in denying his motion because a conviction for first-degree burglary based on an entry into a "dwelling" required proof that the boat defendant entered was " ‘regularly or intermittently’ occupied by a person overnight"other than defendant . (Quoting ORS 164.205(2).) The state's principal position on appeal is that defendant did not preserve that argument because it is "qualitatively different" than the argument that he made to the trial court in support of his motion for judgment of acquittal.
We agree, and defendant does not dispute, that defendant's initial argument in support of his motion for judgment of acquittal was substantially different than his argument on appeal. That argument, in essence, was that the state presented no evidence of anyone lodging overnight on the Amy M because defendant's statements about his own occupancy were not...
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