Chapter 164

LAW REVIEW CITATIONS: 51 OLR 427-637 (1972)

164.005 to 164.135

LAW REVIEW CITATIONS: 51 OLR 432, 525-536 (1972); 10 WLJ 156 (1974)

164.005

NOTES OF DECISIONS

The definition of property in this statute sweeps across all statutes that deal with crimes against property. State v. Whitley, 295 Or 455, 666 P2d 1340 (1983)

For goods covered by Uniform Commercial Code, seller continues to be “owner” of goods until buyer has paid for goods. State v. Alexander, 186 Or App 600, 64 P3d 1148 (2003)

Person takes property with intent to deprive owner of property “permanently” if person abandons or disposes of property under circumstances creating risk that owner will not recover property. State v. Christine, 193 Or App 800, 93 P3d 82 (2004), Sup Ct review denied

For purposes of merger under ORS 161.067, defendant who committed first-degree theft and total value of property was $1,000 or more and in same incident, one subject of theft was firearm, defendant committed single crime of first-degree theft rather than multiple crimes eligible for merger. State v. Slatton, 268 Or App 556, 343 P3d 253 (2015)

164.015

NOTES OF DECISIONS

Except in cases of extortion, indictment alleging defendant “takes, appropriates, obtains or withholds” property adequately conveys concept of theft without additional specification of means of theft. State v. Jim, 13 Or App 201, 508 P2d 462 (1973)

Theft by obtaining property requires that property obtained must actually be stolen. State v. Niehuser, 21 Or App 33, 533 P2d 834 (1975)

An indictment charging the defendant with the crime of theft which was framed in terms of this statute and ORS 164.055 adequately provided notice as required by due process. State v. Gray, 23 Or App 464, 543 P2d 316 (1975)

Where a defendant receives different items of stolen property from different individuals at different times, each act of receiving constitutes a separate interference with property rights which may be prosecuted as a violation of the theft statute. State v. Gilbert, 27 Or App 1, 555 P2d 31 (1976), aff’d 281 Or 101, 574 P2d 313 (1978)

Where indictment alleged that defendant sold automobile manifold knowing that it was stolen, indictment charged defendant solely with first degree theft by sale under this section and ORS 164.095. State v. Farmer, 44 Or App 157, 605 P2d 716 (1980)

Theft by taking did not merge for sentencing purposes with theft by receiving, committed by selling stolen item, because there were two criminal objectives and two separate victims. Smith v. State of Oregon, 78 Or App 485, 717 P2d 240 (1986)

Except for theft by extortion, separate definitions of various methods for accomplishing property deprivation do not create distinct offenses allowing separate punishments based on single deprivation of property. State v. Cox, 336 Or 284, 82 P3d 619 (2003)

To “take” property requires both dominion and control of property and movement of property. State v. Spears, 223 Or App 675, 196 P3d 1037 (2008)

Even slight movement of property from place where defendant finds property is sufficient for establishing taking. State v. Spears, 223 Or App 675, 196 P3d 1037 (2008); State v. Rocha, 233 Or App 1, 225 P3d 45 (2009), Sup Ct review denied

Accused appropriated property when accused withdrew funds from client’s account and disposed of funds for accused’s personal purposes even though accused claimed to repay funds to client’s account. In re Phinney, 354 Or 329, 311 P3d 517 (2013)

Defendant could not be criminally liable on theft-by-taking theory when there was no evidence that defendant participated in or even knew about taking of safe until after taking had occurred. State v. Zimmerman, 309 Or App 447, 483 P3d 39 (2021)

164.025

NOTES OF DECISIONS

An accusatory instrument that complies with this section is not in violation of ORS 132.550, Ore. Const. Art. I, §11, or U.S. Const., Am. 6. State v. Jim, 13 Or App 201, 508 P2d 462 (1973)

When an indictment purports to charge theft in the first degree and alleges sufficient facts to do so, and alternative charge of a lower degree of theft arising from the same conduct may be properly alleged in the same count. State v. Stapleton, 27 Or App 389, 556 P2d 156 (1976)

Where indictment was sufficient to charge defendant with theft of automobile manifold by both appropriation and sale, defendant’s demurrer was improperly sustained since conduct alleged could constitute only single offense under this section. State v. Farmer, 44 Or App 157, 605 P2d 716 (1980)

Although this section allows accusatory instrument to charge theft without specifying particular kind of theft, where accusatory instrument did not describe subcategory of theft by receiving it was error to rank defendant’s conviction in category 3 for sentencing purposes. State v. Ripka, 111 Or App 469, 827 P2d 189 (1992), Sup Ct review denied

Conditional or restricted consent for entry onto property creates license or privilege only to extent with which condition or restriction is complied. State v. Endicott, 296 Or App 644, 439 P3d 510 (2019), Sup Ct review denied

LAW REVIEW CITATIONS: 51 OLR 431 (1972)

164.035

NOTES OF DECISIONS

A creditor’s intent to collect a debt from his debtor by force is not a defense to a charge of robbery. State v. Martin, 15 Or App 498, 516 P2d 753 (1973), Sup Ct review denied

Although defendant returned car to lienholder, towing company in lawful possession of car had right to possession superior to that of defendant and was “owner” for purpose of affirmative defense to theft by receiving. State v. Jost/Oregon-Washington Recovery Co., Inc., 122 Or App 531, 858 P2d 881 (1993)

164.043

NOTES OF DECISIONS

When evidence did not indicate market value of scrap metal at time and place of crime, state failed to present evidence from which reasonable trier of fact could infer that scrap metal was “property.” State v. King, 118 Or App 4, 846 P2d 412 (1993)

164.045

NOTES OF DECISIONS

Under former similar statute (ORS 164.310)

Evidence of other crimes was relevant and admissible to prove the existence of a larger continuing plan, scheme or conspiracy of which the present crime on trial was a part. State v. Wilson, 6 Or App 259, 487 P2d 892 (1971)

In the absence of contrary legislative intent, one breaking and entering with intent to commit larceny could only be convicted and sentenced for burglary and not for larceny and not for both. State v. Burns, 9 Or App 392, 495 P2d 1240 (1972)

Under former similar statute (ORS 164.320)

It was proper for the trial court to allow a police officer to testify as an expert on the modus operandi of shoplifters. State v. Woods, 6 Or App 311, 487 P2d 666 (1971), Sup Ct review denied

Under former similar statute (ORS 165.010)

The taking was unlawful not only from person owning legal title, but also from any person entitled to possession. State v. Brewer, 7 Or App 158, 490 P2d 202 (1971), Sup Ct review denied

In general

Value of stolen property is a question of fact, not of law, and as such is not subject to demurrer as a “view of law,” when stated in an indictment. State v. Chase, 15 Or App 369, 515 P2d 1337 (1973), Sup Ct review denied

Complaint alleging that defendant “did unlawfully and knowingly attempt to commit theft” charged defendant with necessary criminal intent under this section. State v. House, 37 Or App 131, 586 P2d 388 (1978)

In prosecution for theft of food from employer’s grocery store, trial court erred in excluding evidence that it was employer’s policy to allow employes to eat food from store and pay for it later. State v. Bailey, 87 Or App 664, 743 P2d 1123 (1987)

Assault in second degree is not lesser included offense of robbery in first or second degree. State v. Taylor, 97 Or App 261, 774 P2d 1121 (1989)

COMPLETED CITATIONS: State v. Morasch, 5 Or App 211, 483 P2d 474 (1971), Sup Ct review denied; State v. Smith, 6 Or App 27, 487 P2d 90 (1971), Sup Ct review denied

164.055

NOTES OF DECISIONS

Buying or selling stolen property is an essential element of theft in the first degree under this section. State v. Dechand, 13 Or App 530, 511 P2d 430 (1973)

This section authorizes “aggregation” only if component acts are part of same “transaction” as that word has been previously defined by Oregon Supreme Court. State v. Barnes, 14 Or App 23, 511 P2d 1235 (1973); State v. Pena, 15 Or App 582, 516 P2d 761 (1973)

An indictment charging the defendant with the crime of theft which was framed in terms of this statute and ORS 164.015 adequately provided notice as required by due process. State v. Gray, 23 Or App 464, 543 P2d 316 (1975)

Since state may not reach back in time to criminal conduct occurring beyond statute of limitations to construct charge of first degree theft, conviction under this section was improper where evidence showed that only one payment of $50 was made to defendant after November 7, 1974 and less than $200 was obtained by defendant during three years prior to indictment. State v. Scott, 48 Or App 623, 617 P2d 681 (1980)

Evidence that defendant had access to firearms, was seen with them night of theft and sold one of them was sufficient for jury to find that essential elements of crime of this section had been proven beyond reasonable doubt. State v. Taylor, 54 Or App 428, 634 P2d 1381 (1981)

Revolver that could be made operable in three to four minutes at cost of $6 was “readily capable” of use as a weapon within meaning of this section. State v. Gortmaker, 60 Or App 723, 655 P2d 575 (1982), aff’d on other grounds, 295 Or 505, 668 P2d 354 (1983)

Where defendant was experienced district attorney and had himself prosecuted policeman for misappropriation of confiscated guns and where it was undisputed that firearm was property of Marion County and that destruction order did not authorize defendant to give gun to private individual, rational jury could infer that defendant intended to appropriate to third person property he knew was not his to give away. State v. Gortmaker, 60 Or App 723, 655 P2d 575 (1982), aff’d on other grounds, 295 Or 505, 668 P2d 354 (1983)

Theft by taking, ORS 164.015, did not merge for sentencing purposes with theft by receiving, committed by selling stolen item, because there were two criminal objectives and two separate victims. Smith v. State of Oregon, 78 Or App 485, 717 P2d 240 (1986)

Value of property sold is irrelevant when charge is selling stolen property. Gill v. Cupp, 78 Or App 505, 717 P2d 211 (1986)

Element of concealment in ORS 164.095 is incorporated in this section through ORS 164.015 (5) and ORS 164.095; concealment can be continuing act and, therefore, crime of theft by receiving can be continuing crime. State v. Knutson, 81 Or App 353, 725 P2d 407 (1986)

Where defendant appealed conviction for theft by receiving committed by selling, claiming fatal variance between indictment and proof because sale was not consummated, crime was nonetheless sufficiently described in indictment and defendant was not mislead nor prejudiced in preparation of his defense. State v. Swanson, 90 Or App 543, 753 P2d 431 (1988)

That firearm was “readily capable of use as weapon” may be established by evidence other than test firing of weapon. State v. Bennett, 79 Or App 267, 719 P2d 38 (1986), Sup Ct review denied; State v. Wise, 150 Or App 449, 946 P2d 363 (1997)

Culpable mental state required by definition of theft does not extend to other elements constituting offense of theft in first degree. State v. Jones, 223 Or App 611, 196 P3d 97 (2008), Sup Ct review denied

Crime of unlawful entry into motor vehicle is not lesser included offense of attempted theft in the first degree. State v. Medley, 239 Or App 25, 243 P3d 147 (2010)

Defendant’s conduct does not constitute selling when defendant takes goods from sales floor and fraudulently returns goods to store for cash. State v. Fonte, 363 Or 327, 422 P3d 202 (2018)

“Selling” excludes act of returning stolen property to its owner. State v. Meyer, 295 Or App 632, 435 P3d 829 (2019)

164.057

NOTES OF DECISIONS

Where defendant overcharged city several times over two and one-half year period using several different techniques, overcharges could not be aggregated to reach $10,000 minimum for aggravated theft. State v. Robertson, 118 Or App 412, 847 P2d 894 (1993), Sup Ct review denied

164.065

NOTES OF DECISIONS

Although conviction under this section was improper under evidence that ring which defendant purchased was not lost or mislaid but had been stolen, such evidence was sufficient for remand for resentencing for crime of attempted theft. State v. Mack, 31 Or App 59, 569 P2d 624 (1977)

When read with ORS 98.005, 98.015 and 98.025, this section requires finder’s belief that property is lost be objectively reasonable. Finder of bag not visible from street and located no more than five feet from door to defendant’s residence could not have objectively reasonable belief bag was lost. State v. Vanburen, 262 Or App 715, 327 P3d 555 (2014)

164.075

NOTES OF DECISIONS

Where store manager told police about bomb threat and they directed him to give defendant’s accomplice marked bills, it was factual determination for jury whether manager was in part motivated by fear of explosion in giving accomplice money. State v. Marsh, 43 Or App 571, 603 P2d 1212 (1979), Sup Ct review denied

Where, at direction of police officer, victim offered money to defendant to obtain the return of stolen purse, defendant’s subsequent threat to forge checks on victim’s bank account did not motivate the pre-arranged exchange and so did not constitute theft by extortion. State v. Gholston, 55 Or App 790, 639 P2d 1302 (1982), Sup Ct review denied

Where defendant threatened to discard cellular phone before victim agreed to pay for its return, defendant was properly convicted of theft by extortion. State v. Davis, 115 Or App 711, 839 P2d 283 (1992)

164.085

NOTES OF DECISIONS

Under former similar statute (ORS 165.205)

The accused must have intended to defraud the injured party, made a false pretense, the latter must have relied on the false representation believing it to be true and must thereby have been induced to part with something of value. State v. Clermont, 9 Or App 141, 495 P2d 305 (1972), Sup Ct review denied

In general

“Intent to defraud” means that person acts with conscious objective to take property from another person by deception. State v. Reynolds, 246 Or App 152, 265 P3d 22 (2011)

Theft by deception is subject to statute extending statute of limitation for offenses involves material element of fraud. Monfore v. Persson, 296 Or App 625, 439 P3d 519 (2019)

LAW REVIEW CITATIONS

In general

54 OLR 125 (1975)

164.095

NOTES OF DECISIONS

Under former similar statute (ORS 165.045)

This section required actual knowledge or belief by the defendant that the property was stolen. State v. Redeman, 9 Or App 329, 496 P2d 230 (1972)

In general

A jury instruction in the words of the statute is ambiguous and erroneous. An instruction should advise a jury that the culpable mental state required is actual knowledge on the part of the defendant, or belief by the defendant that the property was the subject of theft. State v. Thomas, 13 Or App 164, 509 P2d 446 (1973)

“Reason to know” property is stolen is insufficient absent showing of actual knowledge or belief. State v. Thomas, 13 Or App 164, 509 P2d 446 (1973)

Belief or knowledge that goods are stolen may be inferred from facts showing defendant had reason to believe goods were stolen. State v. Thomas, 13 Or App 164, 509 P2d 446 (1973); State v. Korelis, 273 Or 427, 541 P2d 468 (1975)

Defendant can properly be convicted of attempted theft by receiving even though the subject property was not stolen. State v. Niehuser, 21 Or App 33, 533 P2d 834 (1975)

In a theft prosecution based upon illegally obtaining or receiving the property of another, the state must prove the property was, in fact, stolen. State v. Niehuser, 21 Or App 33, 533 P2d 834 (1975)

Once property is recovered by the police, it ceases to be stolen. State v. Niehuser, 21 Or App 33, 533 P2d 834 (1975)

The trial court in instructing the jury properly recited the general theft provisions of ORS 164.015 to provide the statutory context for the theft by receiving provision. State v. Schindler, 20 Or App 400, 531 P2d 915 (1975), Sup Ct review denied

Where it was alleged that defendant sold automobile manifold knowing it was stolen, indictment charged defendant solely with first degree theft by sale under this section and ORS 164.015. State v. Farmer, 44 Or App 157, 605 P2d 716 (1980)

Evidence did not support theft by receiving theory where defendant’s travel expenses were paid by employer upon agreement that defendant would repay them when later reimbursed by FEMA for those expenses, and where defendant subsequently did not do so and advised employer that he had not received reimbursement from FEMA. State v. Baker, 92 Or App 583, 759 P2d 321 (1988)

Defendant was entitled to UCJI No. 1806 on theft by receiving where he testified to meeting friend Paco on day before and again on day of arrest, at which time he bought allegedly stolen property, and that after putting items in his truck he gave Paco ride, developed car trouble and pulled into driveway near where he was shortly arrested, and where he further testified that Paco fled upon initial stop by police. State v. Cheney, 92 Or App 633, 759 P2d 1119 (1988)

Trial court properly instructed jury on culpable mental state needed to convict defendant under this section when court instructed jury that it must find defendant knew or believed property was stolen. State v. Ripka, 111 Or App 469, 827 P2d 189 (1992), Sup Ct review denied

Original taker of items can be found to have committed theft by receiving due to retention, concealment or disposition of items. State v. Harelson, 147 Or App 556, 938 P2d 763 (1997), Sup Ct review denied

COMPLETED CITATIONS: State v. Pickens, 6 Or App 133, 487 P2d 95 (1971); State v. Penland, 6 Or App 255, 486 P2d 1314 (1971), Sup Ct review denied

164.105

NOTES OF DECISIONS

Partner cannot be convicted of stealing partnership property, because other partners have no superior interest in property taken. State v. Durant, 122 Or App 380, 857 P2d 890 (1993)

164.115

NOTES OF DECISIONS

Invoice price of goods shipped to defendant’s home and not paid for was sufficient to establish prima facie market value of the property, which could be rebutted by defendant. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

Where property is stolen from wholesaler, price at which wholesaler offers to sell it ordinarily reflects its market value. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

Evidence was insufficient to prove that damages in stripping bark from chittamwood trees exceeded $200 where only testimony as to damage came from property owner, his first statement was that it looked like “about $1,000 worth of damage” and he testified at trial that he could not put monetary value on the trees but sold the bark from damaged trees for $284. State v. Washburn, 53 Or App 258, 631 P2d 827 (1981), as modified by 54 Or App 64, 633 P2d 1321 (1981)

“Market value” presumes that both buyer and seller have accurate information. State v. Pierce, 153 Or App 569, 962 P2d 35 (1998), Sup Ct review denied

For property to have “market value,” there must be actual market in which property has value in trade as demonstrated by existence of both willing buyer and willing seller. State ex rel Juvenile Dept. v. Deford, 177 Or App 555, 34 P3d 673 (2001)

Tags and price code information showing price at which goods were offered for retail sale are direct evidence of market value, not out-of-court assertion of value. State v. Pulver, 194 Or App 423, 95 P3d 250 (2004), Sup Ct review denied

To prove value of stolen property through evidence of cost of replacement property, state must prove that stolen property and replacement property are of equal effectiveness or have same utility. State ex rel Juvenile Department v. H.S., 237 Or App 385, 239 P3d 999 (2010)

Evidence that marketplace for property exists but is unreliable is sufficient for trier of fact to conclude that market value of stolen items cannot reasonably be ascertained and that replacement value of stolen items may be used. State v. Mays, 294 Or App 229, 429 P3d 1061 (2018), Sup Ct review denied

164.125

LAW REVIEW CITATIONS: 28 WLR 455 (1992)

164.135

NOTES OF DECISIONS

There was no crime under this section, when there was no evidence of defendant’s exercise of control over an operable vehicle. State v. Macomber, 269 Or 58, 523 P2d 560 (1974)

The court error in failing to remove the issue of unlawful taking from the jury was not prejudicial, even though the unlawful taking was listed as an alternative means of committing theft, for the evidence indicated that the property entered the defendant’s possession with the owner’s consent. State v. Mortenson, 27 Or App 265, 555 P2d 940 (1976), Sup Ct review denied

This section was not unconstitutionally vague. State v. Boyd, 28 Or App 725, 560 P2d 689 (1977)

Defendant’s unauthorized use of fork lift truck constituted unauthorized use of “vehicle” within meaning of this section, notwithstanding that vehicle was not licensed for operation on public roads. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Burglary of or trespass to a vehicle, as was proscribed by former sections, does not constitute “use” of vehicle under this section. State v. Douthitt, 33 Or App 333, 576 P2d 1262 (1978)

A combine and a swather are vehicles within meaning of this section. State v. Keys, 41 Or App 379, 597 P2d 1266 (1979)

An inoperable motorcycle is a “vehicle” within meaning of this section. State v. Blair, 54 Or App 228, 634 P2d 491 (1981)

Indictment which alleged intentional use of vehicle as consisting of “gross deviation from agreed purpose” of performing repairs on automobile was sufficient. State v. Trow, 56 Or App 478, 642 P2d 1178 (1982), Sup Ct review denied

Where juvenile is charged with and admits to act that if committed by adult would be crime resulting in possible confinement for five years and court’s advice is insufficient regarding nature of charge and consequences of admission, child cannot be deemed to have made knowing waiver and juvenile court erred in not setting admission aside. State ex rel Juv. Dept. v. Clements, 95 Or App 640, 770 P2d 937 (1989)

Evidence that defendant had alleged association with gang members and that gang members used stolen cars in illegal activities was irrelevant to prove defendant’s knowledge that car was stolen. State v. Stone, 104 Or App 534, 802 P2d 668 (1990)

Where return of vehicle to owner is withheld, venue is proper either in county where vehicle is unlawfully possessed or county where return was contemplated. State v. Paget, 134 Or App 476, 896 P2d 1 (1995), Sup Ct review denied

Person commits crime of unauthorized use of vehicle when person operates or exercises control over vehicle without consent of person whose right to possession of vehicle is superior to that of person operating or exercising control over vehicle. State v. Haney, 256 Or App 506, 301 P3d 445 (2013)

Defense of “honest claim of right” in prosecution for theft available under ORS 164.035 is not defense to prosecution for unauthorized use of vehicle under this section, because prosecution for unauthorized use of vehicle does not require proof of “theft.” State v. Pusztai, 269 Or App 893, 348 P3d 241 (2015)

Because “without the consent of the owner” is part of nature and character of act of unauthorized use of vehicle under this section, minimum culpable mental state is knowledge of that fact; thus, where jury was given instruction that criminal negligence was applicable mental state required to convict defendant, reversal of conviction was required. State v. Simonov, 358 Or 531, 368 P3d 11 (2016)

Where defendant, convicted under subsection (1)(a) of this section, had consent to use employer’s vehicle but kept vehicle for longer time than agreed, and state provided evidence only as to subsection (1)(c) of this section but not to support conviction under subsection (1)(a), defendant is entitled to acquittal because where only deviation proved is temporal, subsection (1)(c) controls exclusively. State v. Civil, 283 Or App 395, 388 P3d 1185 (2017)

Term “vehicle” includes inoperable vehicles that are capable of operation with reasonable repairs but does not include vehicles that are beyond reasonable repair and constitute wrecked vehicles. State v. Eastep, 361 Or 746, 399 P3d 979 (2017)

“Vehicle,” as used in this section, includes nonmechanized trailer used for carrying or transporting personal property. State v. Phillips, 315 Or App 178, 501 P3d 537 (2021), Sup Ct review denied

COMPLETED CITATIONS: State Forester v. Umpqua R. Nav. Co., 258 Or 10, 478 P2d 631 (1970), cert. denied, 404 US 826 (1971)

164.140

NOTES OF DECISIONS

Jurisdiction under this section resides in place where lessee failed to return property to commercial lessor. State v. McGill, 115 Or App 122, 836 P2d 1371 (1992)

Television shop that rents television sets on rent-to-own basis and on other than rent-to-own basis constitutes “commercial renter” under this section. State v. McGill, 115 Or App 122, 836 P2d 1371 (1992)

When defendant signed repair order that transferred agreement to replacement set, defendant consented to modification of original rental agreement. State v. McGill, 115 Or App 122, 836 P2d 1371 (1992)

Shorter demand time stated in letter from commercial renter than required by this section was not material. State v. McGill, 115 Or App 122, 836 P2d 1371 (1992)

164.170

NOTES OF DECISIONS

Prohibitions on transactions or transfers of funds that are intended to promote carrying on of unlawful activity apply only to transfers that are intended to promote future or ongoing unlawful activity. State v. Kholstinin, 240 Or App 696, 249 P3d 133 (2011)

164.205

NOTES OF DECISIONS

Farm shed which was large enough to hold several trucks was “building” within meaning of section. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Railway boxcar was not building within meaning of this section. State v. Scott, 38 Or App 465, 590 P2d 743 (1979)

Where church camp building was lived in for eight weeks each summer and was vacant for following 44 weeks, and where burglary occurred months after last occupant left, structure was not “regularly or intermittently” occupied, and thus was not “dwelling” within meaning of this section. State v. Eaton, 43 Or App 469, 602 P2d 1159 (1979), Sup Ct review denied

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

Separate storage units in commercial storage warehouse are “buildings” within meaning of this section. State v. Barker/Phelps, 86 Or App 394, 739 P2d 1045 (1987); State v. Handley, 116 Or App 591, 843 P2d 456 (1992)

“Enter” includes intrusion by instrument if used to enable person introducing instrument to consummate criminal objective. State v. Williams, 127 Or App 574, 873 P2d 471 (1994), Sup Ct review denied

Area within building that lacks discrete means for controlling access and has function encompassed by purpose of building is not separate unit. State v. Jenkins, 157 Or App 156, 969 P2d 1048 (1998)

Where permission for person to enter and remain on premises is conditional, person’s continued presence on premises after failure to comply with condition constitutes remaining unlawfully on premises. State v. Holte, 170 Or App 377, 12 P3d 553 (2000)

Where person has been directed by nonjudicial order to leave public premises, person may raise statutory or constitutional right to remain as defense to charge that person remained unlawfully on premises. State v. Riddell, 172 Or App 675, 21 P3d 128 (2001), Sup Ct review denied

Mere entry onto premises open to public does not constitute failure to leave premises after lawful direction to leave. State v. Collins, 179 Or App 384, 39 P3d 925 (2002)

Where building was temporarily vacant following relatively long period of regular overnight occupancy, building qualified as “dwelling.” State v. Kautz, 179 Or App 458, 39 P3d 937 (2002), Sup Ct review denied

Adaptation of vehicle to business use need not be permanent in order to qualify vehicle as “building.” State v. Nollen, 196 Or App 141, 100 P3d 788 (2004)

City may “lawfully” exclude attendee of ordinary public event held on public property only if attendee has violated valid statute or ordinance. Gathright v. City of Portland, 315 F. Supp. 2d 1099 (D. Or. 2004)

Phrase “lawfully directed,” as used in definition for term “enter,” requires inquiry into lawfulness of direction beyond delegated authority of person issuing direction. State v. Koenig, 238 Or App 297, 242 P3d 649 (2010), Sup Ct review denied

Person does not enter or remain unlawfully when person is invited by tenant of leased or rented property to common area of that property. State v. Schneider, 246 Or App 163, 265 P3d 36 (2011), Sup Ct review denied

When read with ORS 164.225, 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. State v. Taylor, 271 Or App 292, 350 P3d 525 (2015)

Where there was no evidence that any rooms in house where defendant lived with defendant’s parents were rented rooms and occupation of bedroom was not exclusive because defendant had permission to enter bedroom at certain times, fact that bedroom door was locked does not make bedroom “separate building” under this section. State v. Rodriguez, 283 Or App 536, 390 P3d 1104 (2017), Sup Ct review denied

Within single-family home, locked bedroom that was separately rented and that defendant lacked permission to enter constituted separate “building” or “dwelling” for purposes of burglary statutes. State v. Perez-Salas, 312 Or App 693, 492 P3d 95 (2021), Sup Ct review denied

Conex box used by grocery store to store recyclable cans and bottles is “building,” as used in this section. State v. Fitzgerald, 315 Or App 336, 500 P3d 721 (2021), Sup Ct review denied

164.215

NOTES OF DECISIONS

Under former similar statute (ORS 164.240)

Where the possible maximum sentences for burglary and the crime committed within the burglarized premises were identical, the state could elect on which charges the defendant would be convicted and sentenced. State v. Meyer, 12 Or App 486, 507 P2d 524 (1973)

In the absence of explicit statutory language or legislative history to the contrary, a criminal defendant could not be convicted and sentenced for both burglary and a separate crime committed within the burglarized premises when the intent to commit that separate crime was one element of the burglary charge. State v. Meyer, 12 Or App 486, 507 P2d 524 (1973)

In general

Evidence that defendant and others entered farm shed of another, and that keys were removed from trucks parked therein during occupation of shed, was sufficient to prove that defendant entered shed with intent to commit criminal mischief. State v. Essig, 31 Or App 639, 571 P2d 170 (1977), Sup Ct review denied

Indictment for burglary, which failed to specify the crime defendant intended to commit when he allegedly unlawfully entered building, was fatally defective. State v. Sanders, 280 Or 685, 572 P2d 1307 (1977)

It was error for trial court to require jury to find defendant not guilty under this section before considering whether defendant was guilty of lesser-included offense of criminal trespass pursuant to ORS 164.245. State v. Ogden, 35 Or App 91, 580 P2d 1049 (1978)

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

Where defendant allegedly gained entry to premises by use of key given him by store manager for purpose of entering to burn records and inventory of owner, state had to prove person extending permission or invitation was without actual authority to do so and entrant knew or believed there was no such authority. State v. Hartfield, 290 Or 583, 624 P2d 588 (1981)

Defendant was privileged to enter victim’s house for limited purposes and reasonable jury could find that defendant exceeded bounds of permission in violation of this section. State v. Felt, 108 Or App 730, 816 P2d 1213 (1991), Sup Ct review denied

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

Intrusion of instrumentality into building is entry only if intrusion, by itself, is sufficient to accomplish criminal objective for which entry is made. State v. Mayea, 170 Or App 144, 11 P3d 264 (2000)

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. Grisel, 488 F3d 844 (9th Cir. 2007); U.S. v. Mayer, 560 F3d 948 (9th Cir. 2009)

Where defendant confesses to violation of this section, evidence of unlawful entry into building is insufficient to corroborate confession. State v. Chatelain, 220 Or App 487, 188 P3d 325 (2008), aff’d 347 Or 278, 220 P3d 41 (2009)

Second degree criminal trespass is, but first degree criminal trespass is not, lesser included offense of second degree burglary. State v. Chatelain, 220 Or App 487, 188 P3d 325 (2008), aff’d 347 Or 278, 220 P3d 41 (2009)

Where entry into business premises is not restricted, limitation on clientele intended to be served by business does not establish that premises are not open to public. State v. Pittman, 223 Or App 596, 196 P3d 1030 (2008)

Entering unlawfully and remaining unlawfully are two alternative methods of meeting “enters and remains unlawfully” element of crime. State v. Pipkin, 245 Or App 73, 261 P3d 60 (2011), aff’d 354 Or 513, 316 P3d 255 (2013)

Conviction of burglary requires at least 10 jurors to agree on which crime defendant intended to commit. State v. Frey, 248 Or App 1, 273 P3d 143 (2012), Sup Ct review denied

To commit crime under this section, defendant must commit criminal trespass for purpose of committing crime. Criminal trespass may begin either when defendant unlawfully enters building or when defendant unlawfully remains in building so court must focus on defendant’s intent when trespass begins. State v. J.N.S., 258 Or App 310, 308 P3d 1112 (2013); State v. McKnight, 293 Or App 274, 426 P3d 669 (2018), Sup Ct review denied

Tents set up to house equipment, work benches and employees performing water testing are buildings as used in this section. State v. Lambert, 263 Or App 683, 328 P3d 824 (2014)

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

Intent to commit additional crime “therein” must exist at some point during unlawful presence, however, that intent need not be present at start of trespass. State v. Henderson, 366 Or 1, 455 P3d 503 (2019)

COMPLETED CITATIONS: State v. Christensen, 5 Or App 335, 483 P2d 84 (1971), Sup Ct review denied; State v. Frailey, 6 Or App 8, 485 P2d 1126 (1971), Sup Ct review denied; State v. Smith, 6 Or App 47, 487 P2d 90 (1971), Sup Ct review denied

LAW REVIEW CITATIONS

In general

17 WLR 226 (1980)

164.225

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)

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, 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)

For purposes of analyzing whether conviction under this section is crime involving moral turpitude under federal immigration law, this section is divisible between first degree burglary of dwelling and first degree burglary of nondwelling involving aggravating factor. Diaz-Flores v. Garland, 993 F3d 766 (9th Cir. 2021)

In deciding claim for relief from removal under federal immigration law, conviction under this section is crime involving moral turpitude when involving dwelling. Diaz-Flores v. Garland, 993 F3d 766 (9th Cir. 2021)

164.235

NOTES OF DECISIONS

A beer bottle used to break a jewelry store window was not a burglar’s tool as defined in this section. State v. Reid, 36 Or App 417, 585 P2d 411 (1978)

A rock or a brick is not a burglary tool under this section. State v. O’Keefe, 40 Or App 685, 596 P2d 987 (1979), Sup Ct review denied

For purposes of defining burglar tool, term “designed” is not unconstitutionally vague. State v. Grace, 76 Or App 237, 708 P2d 1193 (1985), Sup Ct review denied

Neither an object’s actual use nor its capability to be used as tool for burglary is relevant in determination of whether it is “adapted,” but object must actually be modified in some way to serve such purpose. State v. Warner, 298 Or 640, 696 P2d 1052 (1985)

Object is not “commonly used” for committing forcible entry or theft by the fact that it shares characteristics similar to objects that are commonly used. State v. Warner, 298 Or 640, 696 P2d 1052 (1985)

Defendant, convicted of burglary on basis of use of screwdriver, raised exactly question decided in State v. Gravesand was therefore convicted under unconstitutionally vague statute requiring reversal of conviction. State v. Bennett, 79 Or App 267, 719 P2d 38 (1986), Sup Ct review denied

164.245

NOTES OF DECISIONS

Defendant was guilty under this section where he refused to leave Public Utilities Commission rate hearing following lawful order of hearings officer based on defendant’s disruptive behavior, and legality of earlier ruling of hearings officer, denying defendant participation in representative capacity, did not affect legality of order to leave the room. State v. Marbet, 32 Or App 67, 573 P2d 736 (1978)

It was error for trial court to require jury to find defendant not guilty of burglary before it could consider whether defendant was guilty of lesser-included offense of criminal trespass under this section. State v. Ogden, 35 Or App 91, 580 P2d 1049 (1978)

Where defendant, charged with first degree burglary (ORS 164.225), 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 crime of this section was error. State v. Naylor, 291 Or 191, 629 P2d 1308 (1981)

Where trial court reasoned jury could infer defendant was on Lloyd Center property and Lloyd Center security personnel had requisite authority, yet no evidence in record showed who owned property or that areas were marked, posted or identified as belonging to Lloyd Center, trial court erred in denying defendant’s motion for judgment of acquittal. State v. Coffee, 117 Or App 9, 843 P2d 505 (1992)

Statute is inapplicable to United States Post Office property. U.S. v. Waites, 198 F3d 1123 (9th Cir. 2000)

ATTY. GEN. OPINIONS: Constitutionality of application of penal trespass statute to persons distributing religious literature, (1983) Vol 44, p 20

164.255

NOTES OF DECISIONS

Vacant apartment entered by defendant was “dwelling” for purposes of this section where it had previously been occupied and owner expected to rent it once remodeling was complete. State v. Ramey, 89 Or App 535, 749 P2d 1219 (1988), Sup Ct review denied

164.272

NOTES OF DECISIONS

Crime of unlawful entry into motor vehicle is not lesser included offense of attempted theft in the first degree. State v. Medley, 239 Or App 25, 243 P3d 147 (2010)

164.305

NOTES OF DECISIONS

A structure, place or thing is “customarily occupied by people” if (1) by reason of circumstances of time and place when the fire or explosion occurs, people are normally in the building, structure or thing; or (2) circumstances are such as to make the fact of occupancy by persons a reasonable possibility. State v. Perez, 13 Or App 288, 508 P2d 833 (1973), Sup Ct review denied

Definition of “property of another” demonstrates legislative intent to protect interest of owner or possessor in property. State v. Sweet, 46 Or App 31, 610 P2d 310 (1980)

When structure is commercial establishment and evidence shows that employes or public were not regularly on premises at time fire was set, trier of fact can find that at time fire was set commercial establishment was not customarily occupied by people. State ex rel Juv. Dept. v. Roff, 94 Or App 430, 765 P2d 244 (1988)

Requirement that property be “customarily occupied” does not apply to public buildings or forestland. State v. Haynes, 149 Or App 73, 942 P2d 295 (1997), Sup Ct review denied

Defendant, who aided and abetted son in shooting two state-owned wild deer decoys that they believed to be wild deer, damaged “property of another” because state’s sovereign interest in wild deer makes wild deer state property. State v. Dickerson, 260 Or App 80, 317 P3d 902 (2013), aff’d 356 Or 822, 345 P3d 447 (2015)

164.315

NOTES OF DECISIONS

Error, if any, in admission of evidence that defendant had damaged father’s automobile after argument, was harmless where father testified that, on evening of fire, defendant stated that he had set fire to barn and hoped it would burn to ground. State v. Mulvihill, 35 Or App 627, 582 P2d 43 (1978)

Arson in second degree may be lesser included offense under indictment for arson in first degree of another’s protected property. State v. Gibson, 42 Or App 575, 600 P2d 962 (1979), Sup Ct review denied

COMPLETED CITATIONS: State v. Washington, 5 Or App 347, 483 P2d 465 (1971), Sup Ct review denied

164.325

NOTES OF DECISIONS

State failed to corroborate confession of attempted arson with evidence showing that on day following attempted arson house in question burned, and while evidence of second day’s burning would tend to prove that defendant engaged in continuing course of conduct it did not provide independent corroborative evidence of attempted arson of previous day. State v. Swearengin, 32 Or App 349, 573 P2d 362 (1978)

Where fires were started in commercial establishment half hour prior to time employes customarily arrived, defendant was entitled to instruction on lesser included offense of arson in second degree. State v. Gibson, 42 Or App 575, 600 P2d 962 (1979), Sup Ct review denied

Since legislature did not intend that defendant who set fire to number of items with objective of damaging single protected structure should be subjected to multiple convictions and sentences, conviction of three counts of violation of this section and imposition of three consecutive terms was improper and the case was remanded to enter judgment for conviction of one count and resentencing. State v. King, 42 Or App 721, 601 P2d 845 (1979)

As element of proof under this section, state must prove property had “value” as defined by ORS 164.005 and neither “symbolic value” or “value in use” is sufficient; therefore, burning rag could not support conviction of first degree arson. State v. Whitley, 295 Or 455, 666 P2d 1340 (1983)

Since property owner is sole victim of act damaging property, multiple counts based on single act exposing multiple entities to risk of physical injury or other secondary consequences merge. State v. Luers, 211 Or App 34, 153 P3d 688 (2007), modified 213 Or App 389, 160 P3d 1013 (2007)

Correction: The citation to State v. Washington in the permanent edition should be 5 Or App 347.

COMPLETED CITATIONS: State v. Washington, 5 Or App 347, 483 P2d 465 (1971), Sup Ct review denied

164.345

NOTES OF DECISIONS

Tampering with property requires conduct that alters, rearranges or changes property. State v. Schoen, 348 Or 207, 228 P3d 1207 (2010)

Where defendant chained SUV that belonged to another person but was parked in defendant’s parking space to defendant’s vehicle and towed SUV, causing damage to SUV’s bumper, and trial court’s jury instructions under this section defined “tamper” as “conduct that alters, rearranges or changes property,” jury instruction was in error because “tamper” requires alteration, rearrangement or change to property in manner that has adverse effect on property or its use. State v. Lee, 268 Or App 587, 342 P3d 1095 (2015)

COMPLETED CITATIONS: State Forester v. Umpqua R. Nav. Co., 258 Or 10, 478 P2d 631 (1970), cert. denied, 404 US 826 (1971)

164.354

NOTES OF DECISIONS

Admission of testimony by handwriting expert that he had “no doubt” defendant was responsible for painting graffiti in black paint on side of house, was not abuse of discretion. State v. Bolger, 31 Or App 565, 570 P2d 1018 (1977), Sup Ct review denied

Notwithstanding that stop of defendant was unlawful under ORS 131.615, illegality of stop did not render inadmissible evidence of subsequent behavior, for which he was charged under this section. State v. Gaffney, 36 Or App 105, 583 P2d 582 (1978), Sup Ct review denied

Legislative intent of this section is to protect interest of owner or possessor in property. State v. Sweet, 46 Or App 31, 610 P2d 310 (1980)

Intentional damage to property of another in any amount is criminal mischief in second degree and where defendant admitted he stripped bark from trees intentionally, resentencing for crime of criminal mischief was required. State v. Washburn, 54 Or App 64, 633 P2d 1321 (1981)

Where defendant was convicted of second degree criminal mischief in connection with breaking copper pipe in building scheduled for demolition, evidence of economic loss was not necessary to establish statutory element that his intentional conduct “damaged” property of another because pipe had some monetary value and was property of another. State v. Jones, 298 Or App 264, 445 P3d 358 (2019), Sup Ct review denied

164.365

NOTES OF DECISIONS

Since Bonneville Power Administration is not a public utility within meaning of ORS 757.005 (1)(a), defendants could not have been convicted of criminal mischief in first degree for destroying insulators belonging to BPA. State v. Cannon, 65 Or App 327, 671 P2d 761 (1983)

Railroad property that is so closely related to provision of transportation that injury to property would cause loss or disruption of service is used in direct service to public. State v. Wray, 243 Or App 503, 259 P3d 972 (2011)

164.377

NOTES OF DECISIONS

Neither “alters” nor “without authorization” is unconstitutionally vague. State v. Schwartz, 173 Or App 301, 21 P3d 1128 (2001), Sup Ct review denied

Copying computer passwords and password files constitutes “theft” of proprietary information. State v. Schwartz, 173 Or App 301, 21 P3d 1128 (2001), Sup Ct review denied

Where defendant provided fraudulent social security numbers to bank employees that employees entered into computer systems to create bank accounts for defendant, defendant did not “use” computer or computer system, which requires person to directly access or manipulate computer or computer system in commission of theft or fraud. State v. Tecle, 285 Or App 384, 396 P3d 955 (2017)

Where defendant was authorized to access lottery computer terminal as part of work duties, and printed out lottery tickets that defendant took but did not pay for, defendant’s use or access of computer was not “without authorization” as used in this section, which is concerned with access to computer, even though defendant’s conduct on computer may have violated employment policies or laws. State v. Nascimento, 360 Or 28, 379 P3d 484 (2016)

164.395 to 164.415

NOTES OF DECISIONS

Trial court properly admitted two handguns found in defendant’s possession shortly after alleged commission of crimes of kidnapping and robbery, where crimes were committed with aid of a handgun. State v. Manning, 39 Or App 279, 591 P2d 1195 (1979)

164.395

NOTES OF DECISIONS

Physical force employed by the defendant was sufficiently close in space and time to theft to be characterized as an attempt to prevent or overcome resistance to his retention of stolen property immediately after taking. State v. Rios, 24 Or App 393, 545 P2d 609 (1976); State v. Tolson, 24 Or App 657, 546 P2d 1115 (1976)

Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery offenses and defendant was properly sentenced on each conviction. State v. Dillman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied

Where defendant abandoned his attempt to commit theft prior to use of force against owner of property, acts did not come within definition of robbery in this section. State v. Jackson, 40 Or App 759, 596 P2d 600 (1979)

Under evidence that defendant used threats and force to disarm police officer and fled with officer’s gun, intent to permanently deprive owner of possession of property could be inferred and sufficient evidence of theft element of this section was present. State v. Skaggs, 42 Or App 763, 601 P2d 862 (1979)

Evidence that defendant discharged fire extinguisher at security officer, who was approximately nine feet from him, was sufficient to be submitted to jury on issue of use of physical force to prevent resistance to theft. State v. Clark, 47 Or App 557, 615 P2d 1044 (1980)

Where victim testified that defendant grabbed at her purse and told her to give it to him, evidence was sufficient to permit jury to find defendant used force with intention of preventing or overcoming victim’s resistance and such force was sufficient to constitute robbery in third degree under this section. State v. Williams, 58 Or App 398, 648 P2d 1354 (1982)

Where record contained evidence from which rational jury could infer that defendant threatened, expressly or impliedly, to use physical force against another, trial court did not err in denying defendant’s motion for acquittal. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied

Threat is made implicitly where context of demand causes victim to reasonably infer that immediate physical force will be used if demand refused. State v. Hall, 327 Or 568, 966 P2d 208 (1998)

Whether person uses “physical force” depends on intent of person using force, not extent to which victim perceives use of force. State v. Johnson, 215 Or App 1, 168 P3d 312 (2007), Sup Ct review denied

To be victim of crime of robbery, person does not need to own property that is taken. State v. Williams, 229 Or App 79, 209 P3d 842 (2009), Sup Ct review denied; State v. Hamilton, 348 Or 371, 233 P3d 432 (2010)

When defendant fled from taxi cab without paying for taxi ride, defendant did not did not take “property” which is requirement to commit offense of third-degree robbery under this section. State v. Bartlett, 270 Or App 37, 346 P3d 1240 (2015)

When time and distance intervene between theft and defendant’s use of force without evidence that defendant was still in process of escape and defendant reacted with force only when located and apprehended in another location, evidence is insufficient to show that defendant used force immediately after theft. State v. Tolbert, 295 Or App 6, 433 P3d 501 (2018)

Because only minimal force is required for conviction of robbery in third degree, it is not categorical crime involving moral turpitude for purposes of removability analysis under Immigration and Nationality Act. Barbosa v. Barr, 926 F3d 1053 (9th Cir. 2019), modifying Barbosa v. Barr, 919 F3d 1169 (9th Cir. 2019)

Because this section does not require that defendant engage in nonconsensual taking, it is facially overbroad and indivisible and therefore does not qualify as categorical theft offense or count as aggravated felony for purposes of removal analysis under Immigration and Nationality Act. Lopez-Aguilar v. Barr, 948 F3d 1143 (9th Cir. 2020)

LAW REVIEW CITATIONS: 87 OLR 783 (2008)

164.405

NOTES OF DECISIONS

It is for the jury to decide whether the second person present was close enough to aid the defendant. State v. Miller, 14 Or App 608, 513 P2d 1199 (1973)

The term “aided by another person actually present” includes a person who is at hand, or within reach, sight or call, and who presents an added threat to the victim’s safety. State v. Miller, 14 Or App 608, 513 P2d 1199 (1973); State v. Jackson, 212 Or App 51, 157 P3d 239 (2007), Sup Ct review denied

Evidence of the commission of other crimes by a defendant is admissible if relevant to show motive, intent, absence of mistake or accident, common scheme or plan, identity of the defendant, or any other relevant fact unless its probative value is outweighed by its prejudicial tendency to blacken the defendant’s presumptively good character. State v. Williams, 16 Or App 361, 518 P2d 1049 (1974), Sup Ct review denied

Evidence of a second robbery was relevant as to the intent, plan and identification of defendant and its probative value outweighed the potential for prejudice so that it was properly admitted, whereas evidence of yet a third crime, not a robbery, was properly excluded. State v. Williams, 16 Or App 361, 518 P2d 1049 (1974), Sup Ct review denied

Two robberies, each involving a separate victim but arising out of the same transaction, are separate offenses and sentencing on each of them is proper. Hussick v. State, 19 Or App 915, 529 P2d 938 (1974), Sup Ct review denied

Convictions for first and second degree robbery were merged where charges involved same victim and conduct at same time and place. State v. Fickes, 36 Or App 361, 584 P2d 770 (1978)

Evidence of shotgun found in getaway vehicle was irrelevant and inadmissible where weapon was not used in robbery. State v. Cox, 37 Or App 139, 586 P2d 390 (1978), Sup Ct review denied

Evidence that defendant discharged fire extinguisher at security officer who was approximately nine feet from him was sufficient to be submitted to jury on issue of use of physical force to prevent resistance to theft. State v. Clark, 47 Or App 557, 615 P2d 1044 (1980)

Assault in second degree is not lesser included offense of robbery in first or second degree. State v. Taylor, 97 Or App 261, 774 P2d 1121 (1989)

Elements of second degree robbery are not necessarily included in elements of first degree robbery. State v. Zimmerman, 170 Or App 329, 12 P3d 996 (2000)

Menacing is not lesser included offense of second degree robbery. State v. Lee, 174 Or App 119, 23 P3d 999 (2001), Sup Ct review denied

Representation that person is armed with purported deadly weapon may include situation in which person is actually armed. State v. Riehl, 188 Or App 1, 69 P3d 1252 (2003)

Only person who actually engages in active conduct constituting third degree robbery may be directly culpable for violation of this section. State v. Rennells, 213 Or App 423, 162 P3d 1006 (2007)

Person may represent that person is armed with what purports to be dangerous or deadly weapon regardless of whether victim believes representation. State v. Oliver, 221 Or App 233, 189 P3d 1240 (2008), Sup Ct review denied

Person who does not actively engage in conduct constituting third degree robbery may be culpable under aiding and abetting theory. State v. Smith, 229 Or App 243, 211 P3d 961 (2009), Sup Ct review denied

Robbery by representation that person is armed with dangerous or deadly weapon does not constitute crime separate from robbery while aided by another person actually present. State v. White, 346 Or 275, 211 P3d 248 (2009)

To be victim of crime of robbery, person does not need to own property that is taken. State v. Hamilton, 348 Or 371, 233 P3d 432 (2010)

Second degree robbery is not lesser included offense of first degree robbery. State v. Colmenares-Chavez, 244 Or App 339, 260 P3d 667 (2011), Sup Ct review denied

Where defendant was convicted of first-degree robbery under ORS 161.610 and 164.415 and second-degree robbery under this section and ORS 161.610, and one count of second-degree robbery under this section included element that defendant was “aided by another person present” that count does not merge into others under this section because “another person” element is unique and requires proof that other elements do not. State v. Burris, 270 Or App 512, 348 P3d 338 (2015)

Where person knew defendant tried on clothing in store and security officers attempted to stop defendant from leaving, then person drove car with passenger defendant away from officers, trier of fact could reach conclusion that person aided defendant with intent to facilitate robbery and that defendant was therefore “aided by another person actually present” as used in this section. State v. Morgan, 361 Or 47, 388 P3d 1085 (2017)

164.415

NOTES OF DECISIONS

If evidence of other crimes tended to prove the commission of the crime charged in the indictment, the general rule of exclusion had no application. State v. Fuston, 7 Or App 436, 490 P2d 1024 (1971), Sup Ct review denied

“Theft by receiving” is lesser included offense to crime of first degree robbery. State v. Boucher, 13 Or App 339, 509 P2d 1228 (1973)

A person convicted of first degree robbery is not subject to the possibility of an enhanced sentence under [former] ORS 166.230. State v. Howe, 26 Or App 743, 554 P2d 605 (1976), Sup Ct review denied

Sentencing order, which clearly indicated that defendant was sentenced on first degree robbery charge and that first degree burglary charge was merged with robbery charge for purpose of sentencing, was proper. State v. Bruce, 31 Or App 1189, 572 P2d 351 (1977), Sup Ct review denied

Where state relied on precisely same act to establish “use-physical-force” element of robbery and “cause-physical-injury” element of assault, defendant’s assault conviction merged into robbery conviction. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

Defendant’s convictions for first and second degree robbery were merged where charges involved same victim and conduct at same time and place. State v. Fickes, 36 Or App 361, 584 P2d 770 (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. State v. Kline, 37 Or App 899, 588 P2d 675 (1978)

When defendant was charged under this section it was error to convict under second degree assault (ORS 163.175) because every element of second degree assault was not included in first degree robbery under the statutory scheme or the indictment. State v. Cartwright, 40 Or App 593, 595 P2d 1289 (1979)

Legislature, in adopting this section and ORS 164.405, intended to continue to permit juries to infer from fact that gun used in robbery was pointed at victim within firing range that it was loaded gun, and such inference does not shift burden of proof to defendant or violate his privilege against self-incrimination. State v. Vance, 285 Or 383, 591 P2d 355 (1979)

Evidence was sufficient for jury on issue of whether defendant threw “molotov cocktail,” whether it was dangerous weapon, and whether it was intended to prevent resistance to theft. State v. Clark, 47 Or App 557, 615 P2d 1044 (1980)

Evidence that robber pointed shotgun at victim for brief time and shotgun shells were found with gun, was sufficient to support inference that gun was loaded and therefore a “deadly weapon.” State v. Armstrong, 52 Or App 161, 618 P2d 1206 (1981), Sup Ct review denied

Evidence showing that, inter alia: two men walked into store with handkerchiefs over their faces and declared, “this is a robbery, move”; each kept his right hand in his jacket pocket pointing outward, conveying the impression of holding a gun; the victim and another witness identified defendant as one of the robbers; and two guns were found in car defendant was driving; was sufficient for rational jury to have concluded defendant was armed with deadly weapon during robbery. State v. Campbell, 56 Or App 527, 642 P2d 346 (1982)

Acts of petitioner in robbing store clerk and then robbing customer were separate and reflected choice to carry out two separate criminal objectives and merging the two robberies for purposes of conviction and sentencing was improper. Rolin v. Cupp, 57 Or App 64, 643 P2d 1310 (1982), Sup Ct review denied

Assault in second degree is not lesser included offense of robbery in first or second degree. State v. Taylor, 97 Or App 261, 774 P2d 1121 (1989)

Where there is single victim, robbery by use or attempt to use dangerous weapon and robbery by causing or attempting serious physical injury define separate crimes that do not merge. State v. Nevarez, 168 Or App 325, 5 P3d 1200 (2000)

Elements of second degree robbery are not necessarily included in elements of first degree robbery. State v. Zimmerman, 170 Or App 329, 12 P3d 996 (2000)

Where there is single victim, robbery by use or attempt to use deadly weapon and robbery by use or attempt to use dangerous weapon define separate crimes that do not merge. State v. Johnson, 174 Or App 27, 25 P3d 353 (2001), Sup Ct review denied

Menacing is not lesser included offense of first degree robbery. State v. Lee, 174 Or App 119, 23 P3d 999 (2001), Sup Ct review denied

Where joint owner of property aided and abetted third party in forcibly taking property from other owner, joint owner committed robbery of other owner. State v. Zweigart, 344 Or 619, 188 P3d 242 (2008)

To be victim of crime of robbery, person does not need to own property that is taken. State v. Hamilton, 348 Or 371, 233 P3d 432 (2010)

Use of or attempt to use dangerous weapon includes use of dangerous weapon to threaten victim. State v. Osborne, 242 Or App 85, 255 P3d 513 (2011)

Second degree robbery is not lesser included offense of first degree robbery. State v. Colmenares-Chavez, 244 Or App 339, 260 P3d 667 (2011), Sup Ct review denied

First degree armed robbery in violation of this section is not categorically “violent” felony under Armed Career Criminal Act, because mere possession of concealed weapon, not its use, can establish being “armed” under this section. U.S. v. Shelby, 939 F3d 975 (9th Cir. 2019)

164.775

See also annotations under ORS 449.107 in permanent edition.

NOTES OF DECISIONS

Object may be “similar refuse” if discarded as though worthless, regardless of whether object has inherent value in different context. State v. Essex, 215 Or App 527, 170 P3d 1094 (2007)

164.785

See also annotations under ORS 449.105 in permanent edition.

NOTES OF DECISIONS

Tires were not “polluting substance” within meaning of this section. Mignot v. DEQ, 46 Or App 751, 613 P2d 86 (1980)

LAW REVIEW CITATIONS: 2 EL 181, 185, 187 (1971)

164.805

NOTES OF DECISIONS

Urination does not constitute crime of offensive littering. State v. Corcilius, 294 Or App 20, 430 P3d 169 (2018)

164.813

NOTES OF DECISIONS

Crime of unlawful cutting and transport of special forest products is not limited to harvesting activities and does not require removal of products from landowner’s land. State v. Lively, 294 Or App 377, 430 P3d 1120 (2018)

Where defendant was driving truck loaded with cut wood rounds that did not have government-issued permit tags attached, as is customary, through downtown area of town, and defendant stated wood was taken from forest, defendant was transporting special forest products without permit. State v. Fuller, 296 Or App 425, 438 P3d 431 (2019)

164.887

NOTES OF DECISIONS

For purpose of applying protections of Article I, section 20, of Oregon Constitution, provision does not privilege true class. State v. Borowski, 231 Or App 511, 220 P3d 100 (2009)