State v. Endicott

• Decision Date: 20 March 2019
• Docket Number: A157816
• Citation: 439 P.3d 510,296 Or.App. 644
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Charles Leo ENDICOTT, Defendant-Appellant.
• Court: Oregon Court of Appeals

296 Or.App. 644

439 P.3d 510

STATE of Oregon, Plaintiff-Respondent,

v.Charles Leo ENDICOTT, Defendant-Appellant.

A157816

Court of Appeals of Oregon.

Submitted November 30, 2017.

March 20, 2019

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

Defendant appeals a judgment of conviction for, among other offenses, one count of first-degree burglary. ORS 164.225 ; ORS 164.215. On appeal, in his first assignment of error, defendant challenges the trial court’s denial of his motion for a judgment of acquittal (MJOA) on the burglary counts that were subsequently merged into a single conviction.¹ Defendant contends that he had "license" to enter and remain in the dwelling in which the jury found he intended to commit crimes. The state contends that, because defendant exceeded the scope of his license or privilege to enter and remain in the dwelling by bringing a person into the dwelling that defendant was not authorized to bring with him, his entry and remaining was not licensed or privileged and, consequently, was unlawful. For the reasons set forth below, we conclude that a rational trier of fact could have found beyond a reasonable doubt that defendant’s entry and remaining was unlawful. Accordingly, we affirm.

When we review 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 P.3d 1104, rev. den. , 361 Or. 543, 397 P.3d 35 (2017). We state the facts consistently with that standard.

Sorenson rented an apartment in Glide, Oregon. At the time of the burglary in this case, Sorenson was allowing a married couple, ZM (the husband) and KM (the wife), to stay with him at the apartment. In the months leading up to the burglary, KM had been "involved in a check fraud identity theft charge," and had identified three other individuals—at least two of whom were friends of defendant—to police as having also been involved in that conduct.

Sorenson was also friends with defendant. In fact, Sorenson had given defendant "full access" to his apartment, which meant that, according to Sorenson, it "wasn’t abnormal for [defendant] to be waiting for [Sorenson] inside [Sorenson’s apartment] when [Sorenson] got off work." The access that Sorenson had given to defendant to enter and remain in Sorenson’s apartment did not, however, include defendant bringing another individual, Finnell, with him. Specifically, during defendant’s trial, Sorenson provided the following testimony:

"[Deputy District Attorney]: When you testified that you gave [defendant] permission to go to and from your house, that did not include bringing Mr. Finnell with him?

"[Sorenson]: No, it did not."

Sorenson also testified during defendant’s trial that, unlike defendant, Finnell was not "okay to go and come" from Sorenson’s apartment and was not allowed in Sorenson’s apartment. Sorenson explained that "every time I hang out with [Finnell] my chances of going to jail go[ ] up three hundred percent" and that Finnell had previously attacked Sorenson on Sorenson’s porch.

Defendant and Finnell were friends. However, during defendant’s trial, defendant provided the following testimony regarding his view of Finnell’s disposition:

"[Deputy District Attorney]: You explained that you’ve known * * * Finnell since first grade. You described him as wayward, flighty, you have a soft spot for him. Was he ever violent? Did you ever know him to be violent?

"[Defendant]: To say the least.

"[Deputy District Attorney]: I don’t understand what that means. Yes, you did know him to be violent?

"[Defendant]: * * * Finnell has always been kind of violent.

"[Deputy District Attorney]: Would you characterize him as unpredictable?

"[Defendant]: I’m sure most people would. I wouldn’t characterize him as unpredictable.

"[Deputy District Attorney]: How would you characterize him?

"[Defendant]: At times a loose cannon, more or less. Unstable."

Additionally, defendant testified during his trial that Sorenson’s former romantic partner and Finnell had been "kind of promiscuous together," and that had, at some point, caused tension between Sorenson and Finnell.

Prior to the burglary, defendant and Finnell were drinking together at defendant’s house. That day, Finnell was "under the influence of a lot of alcohol and a lot of drugs." During defendant’s trial, Finnell testified about himself that he was using drugs and was high that day because he is "always on drugs and high. And usually drunk." Later that day, defendant brought Finnell to Sorenson’s apartment.

When they arrived at the apartment, KM was sleeping on the couch. Neither Sorenson nor ZM were present. KM awoke to people talking and saw defendant and Finnell in the apartment with her. The door to Sorenson’s apartment did not "really lock" and they had, apparently, let themselves in. Defendant "started to tell [KM] that there were these people [who] were trying to hurt his family, hurt his wife, and that [he] needed * * * [ZM’s] help." KM then left the apartment to go to a neighbor’s house to try to find a phone so that she could call ZM. While she was searching for someone with a phone, ZM returned to Sorenson’s apartment. Upon seeing ZM return, KM returned as well.

Defendant and Finnell then told ZM that someone was threatening defendant and was going to kill defendant’s wife. Defendant requested that ZM come with him and Finnell to defendant’s house. The story defendant and Finnell were telling, however, was not adding up to ZM, and ZM began to question defendant and Finnell.

When it became clear that ZM was not going to go with defendant and Finnell voluntarily, defendant punched him in the face, knocking him to the ground. Defendant then climbed on top of ZM, pulled out a knife, and began "yelling a bunch of stuff," such as "[y]ou narked us out," "[y]ou shouldn’t tell on us," and "[w]e should kill you. You’re dead." While this was occurring, Finnell restrained KM.

When ZM struggled to escape, Finnell ran over to assist defendant and began to put handcuffs on ZM. At that point, KM was able to flee. She left the apartment, stopped a passing semi-truck, and contacted law enforcement.

Subsequently, defendant was arrested and charged with, among other crimes, three counts of first-degree burglary, ORS 164.225. At the close of the state’s case-in-chief, defendant moved for a judgment of acquittal on the burglary counts, arguing that the state had failed to establish that defendant did not have permission to enter or remain in Sorenson’s residence. Specifically, defendant argued that Sorenson was the "lawful possessor of the residence," that Sorenson had not testified during the state’s case-in-chief, and that the married couple did not have "a right to determine who c[ould] be [in the apartment] lawfully or unlawfully." The state responded that the married couple lived at the apartment, and that they had a right to determine "who is excluded and who is not in the absence of Mr. Sorensen." The trial court denied the motion, reasoning that,

"at the time of this incident, * * * with the evidence presented in the light most favorable to the state, [the married couple] had control over the premises, so I do believe there’s sufficient evidence to present the three counts of burglary in the first degree to the jury with regard to the motion for judgment of acquittal."

Defendant then presented his case-in-chief, during which Sorenson testified, as discussed above, that, although defendant had permission "to go to and from" Sorenson’s apartment, that permission "did not include bringing Mr. Finnell with him." Additionally, during defendant’s case-in-chief, defendant provided the following testimony in which defendant acknowledged that, on the day of the burglary, defendant was aware that Sorenson did not want Finnell at Sorenson’s apartment:

"[Deputy District Attorney]: And were you aware that * * * Sorensen did not want * * * Finnell at his home when you took him by the house?

"[Defendant]: That’s why [Finnell] stood outside the whole time to begin with * * *."

At the close of defendant’s case in chief, defendant renewed his MJOA, again arguing that Sorenson was the "lawful possessor of th[e] residence[ ]," and also arguing that Sorenson had provided testimony reflecting that defendant had permission to be at the apartment. The state responded that Sorenson’s permission did not allow defendant to enter with Finnell. The trial court again denied defendant’s MJOA, concluding that there was sufficient evidence to go forward to the jury. The jury then found defendant guilty of, among other crimes, two counts of burglary in the first degree, which the trial court merged into a single conviction.

On appeal, defendant argues that the trial court erred when it denied his MJOA on the burglary counts. Defendant’s argument is twofold: First, defendant argues that his entry or remaining in Sorenson’s apartment was lawful, because he had Sorenson’s permission to enter and remain in the apartment and, under ORS 164.205(3)(a), which defines "enter or remain unlawfully" for purposes of the burglary and criminal trespass statutes, "an invitation from an owner" establishes that the entrant was "licensed or privileged" to enter or remain on property. Defendant acknowledges that Sorenson’s permission to enter and remain in the apartment did not authorize defendant to bring Finnell into the apartment—and defendant does not argue that he was unaware of this restriction—but contends that "the relevant aspects of license [under ORS 164.205(3)(a) ] are the physical locale of a ‘premises’ and the time of defendant’s entry." Consequently, according to defendant,...