2017 ORS 164.225¹
Burglary in the first degree

(1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 (Burglary in the second degree) 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 (Possession of a burglary tool or theft device) 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]

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 (Murder). 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 (Possession of a burglary tool or theft device). 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 (Criminal trespass in the second degree)) 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 (Definitions for ORS 164.205 to 164.270). 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 (Definitions for ORS 164.205 to 164.270). 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)

1 Legislative Counsel Committee, CHAPTER 164—Offenses Against Property, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors164.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 164, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano164.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.