State v. J.N.S

Intent to commit a crime therein does not suffice for a burglary charge under ORS 164.215, if the intent is formed while merely remaining on the premises, when the accused had knowledge that they were not originally authorized to enter onto the premises.

Youth appealed a judgment of burglary in the second degree and possession and manufacture of a destructive device. Youth argued that while he did enter the house unlawfully, he did not have the requisite intent to commit the crime. The Youth was stopped by an officer while trespassing in what the Youth thought was an abandoned house. While in the house, the Youth stole a key, and was carrying a tennis ball full of gunpowder. The State argued that the Youth was engaged in conduct that, under ORS 164.215, constituted burglary because the Youth had the requisite intent to commit a crime by "remaining in the building with the intent to commit a crime..." The Court disagreed, reasoning that the intent to commit a crime needed to have taken place before the Youth entered into the building, and that the legislature did not mean to include criminal intent formed after the entry onto a premises where the trespasser already knew they were not allowed. Secondly, the Court concluded that the trial court misunderstood the meaning of "destructive device" under ORS 166.382 and, that the tennis ball was excluded as a "pyrotechnic device." Reversed.