84 February 22, 2024 No. 113

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ANDREW SHAE TAYBORNE,

Defendant-Appellant.

Lane County Circuit Court

21CR13861, 21CR14101

A176643 (Control), A176644

Bradley A. Cascagnette, Judge.

Argued and submitted April 24, 2023.

Rond Chananudech, Deputy Public Defender, argued the 

cause for appellant. Also on the briefs was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Patrick M. Ebbett, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

POWERS, J.

In Case No. 21CR13861, conviction on Count 1 reversed; 

remanded for sentencing; otherwise affirmed. In Case No. 

21CR14101, affirmed.
Cite as 331 Or App 100 (2024) 85
86 State v. Tayborne

POWERS, J.

In this consolidated criminal case, defendant challenges his conviction for burglary in the first degree (Count 

1), ORS 164.225, following an incident where he entered a 

motel room and assaulted and robbed the victim.1

 In a single 

assignment of error, defendant challenges the denial of his 

motion for judgment of acquittal (MJOA), arguing that the 

state failed to prove that he “enter[ed] or remain[ed] unlawfully” in a dwelling. Defendant does not dispute that he 

entered the room with the intent to commit a crime; rather, 

he argues that the state failed to produce sufficient evidence 

that the person who invited him to the room lacked actual 

authority to invite him and that he knew or believed that she 

lacked authority. As explained below, we agree with defendant’s argument that the state failed to adduce sufficient 

evidence to prove that he knew or believed that the person 

who invited him into the motel room lacked authority to do 

so. Accordingly, because the trial court erred in denying the 

MJOA, we reverse Count 1 and remand for resentencing.

We review the denial of an MJOA by examining the 

evidence in the light most favorable to the state to determine whether a rational trier of fact—accepting reasonable 

inferences and reasonable credibility choices—could have 

found the essential elements of the crime beyond a reasonable doubt. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 

(1994), cert den, 514 US 1005 (1995). We set out the facts in 

accordance with that standard.

Around midnight on a late-March evening, the victim’s friend, Best, told him that she was fighting with her 

boyfriend and needed a place to stay. The victim rented a 

room at the Valley River Inn in Eugene. The victim paid for 

the room, and Best was not listed as a guest on the motel 

register. Best and the victim hung out in the room, and the 

victim fell asleep within an hour. At that time, the victim 

had not given anyone else permission to be in the room, and 

he testified that defendant, who was an acquaintance, did 

not have permission to be in the room.

1 Defendant challenges only Count 1 in Case No. 21CR13861. He does not 

challenge his other convictions in that case, nor does he challenge his conviction 

in Case No. 21CR14101.
Cite as 331 Or App 100 (2024) 87

While in the room, Best texted defendant letting 

him know that, if he came to the motel, she would meet him 

in the parking lot and give him the room key. The specific 

contents of the text messages were not admitted into evidence; rather, a detective testified that he reviewed the text 

messages and concluded that they could be interpreted to 

be the planning stages of the crimes in this case. The detective also testified that the texts included photos that Best 

had taken of the inside of the motel room and of the victim. 

Around 3:45 a.m., Best was no longer in the motel room, and 

the victim woke up to defendant, who was wearing a head 

covering and black gloves, spraying him with bear mace. 

The victim chased defendant out of the room and got the 

attention of a security guard in the parking lot who wrote 

down defendant’s license plate number. The police eventually arrested defendant and retrieved some of the victim’s 

stolen property from defendant’s car.

Defendant was charged with multiple crimes arising from the incident, including first-degree burglary, which 

is the only count at issue in this appeal. He pleaded guilty 

to seven other charges, Counts 2 through 8, arising from 

the same incident: robbery in the third degree, theft in the 

first degree, felon in possession of a firearm, unlawful use of 

an electrical stun gun/tear gas/mace in the second degree, 

assault in the fourth degree, interfering with peace/parole 

and probation officer, and resisting arrest. On the firstdegree burglary charge, defendant waived his right to a jury 

trial and proceeded to a trial before the court. At the close of 

the state’s case-in-chief, defendant moved for a judgment of 

acquittal, arguing that the state failed to prove that he was 

not licensed to enter the motel room. The trial court denied 

the motion and ultimately found him guilty of first-degree 

burglary. This timely appeal follows.

The central issue before us involves whether the 

state adduced sufficient evidence to prove beyond a reasonable doubt that defendant entered the motel room unlawfully. Before turning to the parties’ arguments on appeal, 

we briefly set out the statutory framework in which those 

arguments arise. The first-degree burglary statute provides, in part:
88 State v. Tayborne

“(1) A person commits the crime of burglary in the 

first degree if the person violates ORS 164.215 [the seconddegree burglary statute] and the building is a dwelling, or 

if in effecting entry or while in a building or in immediate 

flight therefrom the person:

“* * * * *

“(b) Causes or attempts to cause physical injury to any 

person[.]”

ORS 164.225. ORS 164.215(1) provides that a person 

commits second-degree burglary if “the person enters or 

remains unlawfully in a building with intent to commit a 

crime therein.” ORS 164.205(3)(a) defines the phrase “[e]nter 

or remain unlawfully” to include “enter[ing] or remain[ing] 

in or upon premises when the premises, at the time of such 

entry or remaining, are not open to the public and when 

the entrant is not otherwise licensed or privileged to do so.” 

Importantly, entering a building to commit a crime is not 

burglary if the person has permission to be in the building. 

See State v. McLaughlin, 317 Or App 596, 607, 505 P3d 1088 

(2022) (so stating).

To establish that a defendant is not licensed or 

privileged to enter premises not open to the public when the 

defendant has been permitted or invited to enter, the state 

must prove two elements: (1) The person extending the permission or invitation lacked actual authority to do so, and 

(2) the defendant knew or believed that the person lacked 

such authority. State v. Hartfield, 290 Or 583, 595, 624 P2d 

588 (1981).

On appeal, defendant’s challenge is narrow: He 

asserts that the trial court erred by denying his MJOA 

because there was insufficient evidence that Best lacked 

actual authority to invite defendant into the motel room and 

insufficient evidence to prove that he knew that she lacked 

authority. More specifically, he argues that, because the text 

messages between Best and defendant included pictures 

of the room and because Best gave defendant a key to the 

room, those circumstances indicated to defendant that Best 

had access to the room and, thus, had authority to invite 

him into the room.
Cite as 331 Or App 100 (2024) 89

The state remonstrates that the circumstances 

of defendant’s entry support a reasonable inference that 

defendant was aware that Best did not have authority to 

invite him into the room. According to the state, evidence 

that the text messages contained a plan to commit a crime, 

that defendant entered the motel room in the middle of the 

night while wearing a head covering and gloves, and that 

Best gave defendant the key outside the motel and was not 

present in the room when defendant entered all provide sufficient evidence for the trial court to deny the MJOA. As 

explained below, because we ultimately conclude that there 

was insufficient evidence in the record to prove beyond a 

reasonable doubt that defendant knew or believed that Best 

lacked authority to invite him into the motel room, we need 

not address whether Best lacked actual authority to extend 

the invitation.

After reviewing the record, we conclude that the state 

did not adduce sufficient evidence to prove that defendant 

knew or believed that Best lacked authority. Although the 

record contains evidence that Best and defendant exchanged 

text messages leading up to defendant entering the motel, 

the specific contents of those texts were not entered into evidence. Without details of those texts, it is purely speculative 

to suggest that the texts provide any foundation on which 

defendant could have known or formed a belief that Best 

lacked authority to invite him into the motel. To be sure, 

the text messages demonstrated that they were planning to 

commit crimes together, which could have included burglary 

or robbery or both. Without more detail, however, on what 

crimes or what those texts may have revealed about defendant’s knowledge, the mere fact of a plan to commit crimes 

is not sufficient evidence to prove what defendant knew or 

believed about Best’s authority to invite him into the motel 

room. Thus, although there is sufficient evidence to conclude 

that the purpose of the entry into the room was to commit 

crimes, we have previously explained that the intent to commit a crime, on its own, does not render an entry unlawful. 

See McLaughlin, 317 Or App at 607 (explaining that “entering a building to commit a crime is not burglary if the person has permission to be there” (emphasis omitted)).
90 State v. Tayborne

Additionally, although Best told defendant that she 

would meet him in the parking lot to give him a key to the 

room, the location of that meeting and the passing of the key 

does not give the factfinder sufficient evidence to infer defendant’s belief about Best’s authority at that point. A meeting 

in the parking lot does suggest that they wanted to meet 

away from the victim, but it does not provide any foundation 

on which to make a reasonable inference about defendant’s 

knowledge of Best’s authority or lack thereof. Importantly, 

the record does not demonstrate whether Best had her own 

key or took the victim’s key, nor does the evidence illuminate 

whether defendant knew which key Best gave him. Further, 

although defendant knew that the victim was in the motel 

room, there is no evidence in the record that defendant knew 

who rented or paid for the room or whose name was on the 

guest register. Accordingly, we reject the state’s arguments 

about the inferences that can be made about defendant’s 

knowledge or beliefs because the inferences are too speculative given the record developed at trial.

In short, there is insufficient evidence in the record 

for a rational factfinder to have concluded that defendant 

knew or believed that Best lacked actual authority to 

invite him into the motel room. Therefore, the state failed 

to prove that defendant was not licensed or privileged to 

enter the motel room and, thus, failed to prove that defendant “enter[ed] or remain[ed] unlawfully” in a dwelling. 

Accordingly, we conclude that the trial court erred in denying defendant’s MJOA on the burglary charge.

In Case No. 21CR13861, conviction on Count 1 

reversed; remanded for sentencing; otherwise affirmed. In 

Case No. 21CR14101, affirmed.