Ors burglary

Ors burglary DEFAULT

2011 Oregon Revised Statutes
ORS Volume 4, Chapters 131 - 170
ORS Chapter 164
164.225 Burglary in the first degree.


OR Rev Stat § 164.225 (through Leg Sess 2011) What's This?

(1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

(a) Is armed with a burglary tool or theft device as defined in ORS 164.235 or a deadly weapon;

(b) Causes or attempts to cause physical injury to any person; or

(c) Uses or threatens to use a dangerous weapon.

(2) Burglary in the first degree is a Class A felony. [1971 c.743 137; 2003 c.577 10]

Disclaimer: These codes may not be the most recent version. Oregon may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

Sours: https://law.justia.com/codes/oregon/2011/vol4/164/164-225/

Robbery vs Burglary in Oregon

What’s the Difference Between Robbery and Burglary in Oregon?

Many people informally say, “I was robbed” when they were actually victims of a “burglary.” Similarly, many defendants charged with “burglary” might think they’ve been charged with “robbery.” In general, as you can see below, what primarily separates the two crimes is whether the crime took place in a house or building.

Even though the terms “robbery” and “burglary” are often used interchangeably, they are legally different charges and concepts. Both burglary and robbery are defined by statute:

Robbery in the First Degree is defined by Oregon law ORS 164.415

(1) A person commits the crime of robbery in the first degree if the person violates ORS 164.395 and the person:

(a) Is armed with a deadly weapon;

(b) Uses or attempts to use a dangerous weapon; or

(c) Causes or attempts to cause serious physical injury to any person.

(2) Robbery in the first degree is a Class A felony.

Robbery in the Second Degree is defined by Oregon law ORS 164.405

(1) A person commits the crime of robbery in the second degree if the person violates ORS 164.395 and the person:

(a) Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or

(b) Is aided by another person actually present.

(2) Robbery in the second degree is a Class B felony.

Robbery in the Third Degree is defined by Oregon law ORS 164.395

(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in ORS 164.135 the person uses or threatens the immediate use of physical force upon another person with the intent of:

(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or

(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft or unauthorized use of a vehicle.

(2) Robbery in the third degree is a Class C felony.

Burglary in the First Degree is defined by Oregon law ORS 164.225

(1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

(a) Is armed with a burglary tool or theft device as defined in ORS 164.235 or a deadly weapon;

(b) Causes or attempts to cause physical injury to any person; or

(c) Uses or threatens to use a dangerous weapon.

(2) Burglary in the first degree is a Class A felony.

Burglary in the Second Degree is defined by Oregon law ORS 164.215

(1) Except as otherwise provided in ORS 164.255, a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.

(2) Burglary in the second degree is a Class C felony.

If you’ve been a victim of either robbery or burglary, contact the police. If you’ve been accused by someone of committing robbery or a burglary, invoke your right to remain silent and contact a criminal defense attorney immediately. These crimes are all felonies, some of them are Measure 11 crimes, and therefore can involve mandatory prison sentences.

Sours: https://romanolawpc.com/robbery-vs-burglary-in-oregon-2/
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OREGON BURGLARY LAWS

 

   ORS 164.215 Burglary in the second degree (Sometimes called Burg 2 or Burglary 2).

    (1) Except as otherwise provided in ORS 164.255, a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.

    (2) Burglary in the second degree is a Class C felony.

POSSIBLE SENTENCE
ProbationUsually
JailUsually, or . . .
PrisonSometimes

   ORS 164.225 Burglary in the first degree (Sometimes called Burg 1 or Burglary 1).

  (1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person:

   (a) Is armed with a burglary tool or theft device as defined in ORS 164.235 or a deadly weapon;

   (b) Causes or attempts to cause physical injury to any person; or

   (c) Uses or threatens to use a dangerous weapon.

   (2) Burglary in the first degree is a Class A felony. 

POSSIBLE SENTENCE
ProbationSometimes
JailYes, or . . .
PrisonSometimes

 

   ORS 164.235 Possession of a burglary tool or theft device. 

 

   (1) A person commits the crime of possession of a burglary tool or theft device if the person possesses a burglary tool or theft device and the person:

   (a) Intends to use the tool or device to commit or facilitate a forcible entry into premises or a theft by a physical taking; or

   (b) Knows that another person intends to use the tool or device to commit or facilitate a forcible entry into premises or a theft by a physical taking.

   (2) For purposes of this section, “burglary tool or theft device” means an acetylene torch, electric arc, burning bar, thermal lance, oxygen lance or other similar device capable of burning through steel, concrete or other solid material, or nitroglycerine, dynamite, gunpowder or any other explosive, tool, instrument or other article adapted or designed for committing or facilitating a forcible entry into premises or theft by a physical taking.

   (3) Possession of a burglary tool or theft device is a Class A misdemeanor. [1971 c.743 §138; 1999 c.1040 §13; 2003 c.577 §9]

 

POSSIBLE SENTENCE
ProbationUsually
JailSometimes

 

   ORS 164.272 Unlawful entry into a motor vehicle. 

 

  (1) A person commits the crime of unlawful entry into a motor vehicle if the person enters a motor vehicle, or any part of a motor vehicle, with the intent to commit a crime.

   (2) Unlawful entry into a motor vehicle is a Class A misdemeanor.

   (3) As used in this section, “enters” includes, but is not limited to, inserting:

   (a) Any part of the body; or

   (b) Any object connected with the body. [1995 c.782 §1]

 

POSSIBLE SENTENCE
ProbationUsually
JailSometimes

 

   ORS 164.205 Definitions for ORS 164.205 to 164.270. 

 

As used in ORS 164.205 to 164.270, except as the context requires otherwise:

   (1) “Building,” in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein. Where a building consists of separate units, including, but not limited to, separate apartments, offices or rented rooms, each unit is, in addition to being a part of such building, a separate building.

   (2) “Dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present.

   (3) “Enter or remain unlawfully” means:

   (a) 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 or when the entrant is not otherwise licensed or privileged to do so;

   (b) To fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge;

   (c) To enter premises that are open to the public after being lawfully directed not to enter the premises; or

   (d) To enter or remain in a motor vehicle when the entrant is not authorized to do so.

   (4) “Open to the public” means 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.

   (5) “Person in charge” means a person, a representative or employee of the person who has lawful control of premises by ownership, tenancy, official position or other legal relationship. “Person in charge” includes, but is not limited to the person, or holder of a position, designated as the person or position-holder in charge by the Governor, board, commission or governing body of any political subdivision of this state.

   (6) “Premises” includes any building and any real property, whether privately or publicly owned. [1971 c.743 §135; 1983 c.740 §33; 1999 c.1040 §10; 2003 c.444 §1]

 


 

Is burglary a felony in Oregon?

Yes, both burglary in the first degree and burglary in the second degree are felony crimes.

What is the sentence for burglary in the first degree in Oregon?

The sentences for Burglary in the First Degree (Burg. I) vary widely.  Many people do go to prison if convicted of the charge.  Whether a defendant receives a probation or prison sentence will often depend on the following:  the criminal history of the defendant; whether the dwelling was occupied at the time of the crime; whether the defendant possessed a weapon at the time of the crime; and what underlying crime occurred during the burglary.

Sours: https://www.oregoncrimes.com/oregon_burglary_law__ors_164216.html
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ORS 164.215
Burglary in the second degree

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)

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

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)

Chapter 164

Law Review Citations

51 OLR 427-637 (1972)

Sours: https://oregon.public.law/statutes/ors_164.215

Burglary ors

ORS 164.225
Burglary in the first degree

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)

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. 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 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

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)

Chapter 164

Law Review Citations

51 OLR 427-637 (1972)

Sours: https://oregon.public.law/statutes/ors_164.225
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