State v. Taylor , 1974 Ore. App. LEXIS 1112 ( 1974 )

SCHWAB, C.J.

Defendant, indicted for first degree burglary, ORS 164.225, was convicted by a jury of second degree burglary, ORS 164.215. He appeals, assigning as error the failure of the court to give a requested instruction on the lesser included offense of second degree theft, ORS 164.045.

About 4 a.m. defendant was apprehended by the police in the laundry room of an apartment complex. He had coins in his possession that he had just removed from some coin-operated washing machines.

Defendant testified that he was passing through the city of Eugene when he saw the apartment complex and stopped, thinking he could do his laundry. He walked around the complex, discovered the laundry room, tried its closed door and found it to be unlocked. Defendant testified that he assumed that the laundry room was open to the public. He then returned to his car, obtained an awl, returned to the laundry room, and was in the process of using the awl to remove coins from the machines when interrupted by the police.

Thus, defendant admitted committing the crime of second degree theft. His defense to the burglary charge was that his entry into the laundry room was not unlawful because that room was open to the public.

ORS 164.215 (1) provides: “A person commits the crime of burglary in the second degree if he enters or remains unlawfully in a building with intent to commit a crime therein.” ORS 164.205 (3) (a) defines “enters or remains unlawfully” as: “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 * * ORS 164.205 (4) defines “premises open to the public” as: “* * * premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required.”^① Under these statutes, when a person enters or remains in an area that, at the time he enters or remains is “open to the public,” the act of entering or remaining is not “unlawful” and cannot be the basis of a burglary charge.^②

The question of when trial courts should give lesser included offense instructions has been a recurring problem. The Supreme Court has under advisement two cases involving this issue. State v. Williams, 16 Or App 48, 517 P2d 311 (1973), Sup Ct review allowed (1974); State v. Atkins, 14 Or App 603, 513 P2d 1191 (1973), Sup Ct review allowed (1974).

Under any possible rule, however, the defendant in this case was entitled to a lesser included offense instruction defining theft. Our approach in Williams was as follows: the trial court should make its own preliminary evaluation of the evidence and determine whether a jury — exercising its prerogative to believe some evidence, disbelieve other evidence and draw all reasonable inferences from the evidence — could rationally find the facts to be such that a defendant would be not guilty of a greater offense, but guilty of a lesser included offense. If so, requested lesser included offense instructions should be given. Applying that approach to this case, we conclude that the jury could have rationally found defendant not guilty of any degree of burglary because the laundry room was public, but guilty of theft according to his own testimony.

Evidence indicating that the laundry room was open to the public included the fact that it was not locked, that lights were shining outside the apartment building, and that there was no sign outside the laundry facility indicating that it was limited to private use. There was also contrary evidence: no signs or lights indicating the laundry was open to the public — or even that the room was a laundry, no lights on inside the laundry room, the early hour — 3 to 4 a.m., and a sign inside the laundry room stating the hours were 7 a.m. to 10 p.m.^③ Resolution of this conflicting evidence was properly for the jury. However, it would have been quite rational for the jury to conclude that this evidence failed to prove beyond a reasonable doubt that the laundry facility was not open to the public. Defendant’s requested instruction on theft should have been given.

Reversed and remanded.

① Also possibly relevant, although not here relied upon by either party, would be ORS 161.015 (9), which provides:

“ ‘Public place’ means a place to which the general public has access and includes, but is not limited to, hallways, lobbies and other parts of apartment houses and hotels not constituting rooms or apartments designed for actual residence, and highways, streets, schools, places of amusement, parks, playgrounds and premises used in connection with public passenger transportation.”

② To the extent that State v. Keys, 244 Or 606, 419 P2d 943 (1966), decided when there was no statutory definition of “enters or remains unlawfully,” is inconsistent, it has been superseded by the subsequent adoption of the above-discussed statutory definitions.

③ A closer question would be presented concerning whether defendant “remained unlawfully” in the laundry room if the record indicated he saw the posted sign about the hours the room was open. The record is silent on this.