State v. Nugent

In a criminal trespass case, even if the court erred by giving a single instruction rather than a double instruction, the error does not require reversal if the instruction did not mislead the jury.

Defendant appealed a conviction of second-degree criminal trespass. Defendant was found asleep on property that bordered a river and was enclosed on the remaining three sides by a fence marked with “no trespassing” signs. The trial court gave Criminal Jury Instruction (UCrJI) 1900, which defines “to enter or remain unlawfully” the same as ORS 164.245(3)(a), which requires only one element for conviction, either (1) "[t]o 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 (2) “when the entrant is not otherwise licensed or privileged to do so." Defendant did not dispute the second element, however objected to the jury instruction, because this court and the Supreme Court case law have held that proof of criminal trespass requires both of the abovementioned elements. On appeal, the Court determined there was no need to decide whether the trial court erred in delivering the jury instruction, because taking into account all of the evidence, applicable legal theories, and jury instructions presented by the state, there was “no reasonable likelihood that the jury mistakenly believed that it could convict the defendant without finding that the defendant knew or should have known that the property was open to the public.” Therefore, any error that stemmed from the jury instruction is not reversible, because the instruction did not mislead the jury. Affirmed.