Burglary in Oregon requires a crime beyond just staying there

At the end of August, the Oregon Court of Appeals handed down a decision in J.N.S. v. State, A147805 (August 28, 2013), examining whether the burglary statute–requiring that a person enter or remain unlawfully in a building with the intent of committing a crime–could be satisfied simply by entering AND remaining in the building unlawfully (after all, remaining is a crime, too).

Although it would seem like a pretty easy answer to say, “No, you have to be committing a crime that is different from the ‘entering’ itself,” the Court had to spend more than a bit of time construing the statute to figure this one out.  What makes this case more interesting than a garden variety statutory construction case is what the juvenile (hence the initials) had in his backpack: a tennis ball bomb with a pixie stick wick, both filled with gunpowder.  Although possession of those items is itself a crime, it’s a reasonable question whether he was going to use them inside.  The house was vacant, but there was no evidence that he had planted the explosive.

It doesn’t seem to make much sense to have an automatic burglary (a felony) result, instead of first degree trespass (a misdemeanor), simply because the person breaking in actually went in the building for any length of time.  Not sure that logic follows when it’s a dumb kid with explosives in his backpack, but unless he lit something off inside (malicious mischief, arson, etc.), a felony charge might well be unjust.

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