S056484, Opinion — State v. Chatelain

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Argued and submitted May 18, decision of Court of Appeals affirmed; judgment
of circuit court affirmed in part and reversed in part, and case remanded to
circuit court for further proceedings October 22, 2009

STATE OF OREGON,
Petitioner on Review,
v.
AMRIT NATHAN CHATELAIN,
Respondent on Review.
(CC 050633303; CA A130208; SC S056484)
220 P3d 41

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CJS, Criminal Law § 942.

# En Banc

On review from the Court of Appeals .*

Ryan Kahn, Assistant Attorney General, argued the cause
and filed the brief for petitioner on review. With him on the
brief were John R. Kroger, Attorney General, and Rolf C.
Moan, Acting Solicitor General.

\* Appeal from Multnomah County Circuit Court, Michael H. Marcus, Judge.
220 Or App 487, 188 P3d 325 (2008).

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Elizabeth Corbridge Ranweiler, Deputy Public Defender,
Salem, argued the cause and filed the brief for respondent on
review. With her on the brief was Peter Gartlan, Chief
Defender, Office of Public Defense Services, Salem.

BALMER, J.

The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is affirmed in part and reversed in
part, and the case is remanded to the circuit court for further
proceedings.

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BALMER, J.

We allowed review in this criminal case to determine
the scope of the statutory corroboration requirement pres-
ently found in ORS 136.425(1), which we set out below.
Defendant was charged with, among other things, second-
degree burglary arising out of an incident where he entered a
vacant house that was for sale. An eyewitness testified that
defendant had entered the house with a young-looking
female companion, remained inside for approximately
45 minutes, and fled when police arrived. When appre-
hended, defendant appeared to be under the influence of a
stimulant, and police found two lighters in his pockets. Even-
tually, defendant confessed to entering the house for the pur-
pose of smoking marijuana with his younger companion. At
trial, defendant moved for a judgment of acquittal, arguing
that the state had failed to provide evidence, apart from his
confession, that he had entered the house with intent to dis-
tribute a controlled substance to a minor, as alleged in the
indictment. The trial court denied the motion and ultimately
convicted defendant. Defendant appealed, and the Court of
Appeals reversed. State v. Chatelain, 220 Or App 487, 188
P3d 325 (2008). We allowed review and now affirm the deci-
sion of the Court of Appeals.

Because the issue arises on a motion for judgment of
acquittal, we state the facts in the light most favorable to the
state. State v. Fries, 344 Or 541, 543, 185 P3d 453 (2008). At
a little after 7:00 a.m., an eyewitness saw defendant and a
young woman enter a vacant house that was for sale.
Because the witness suspected that the two individuals were
not interested in buying the house and were not otherwise
authorized to enter it, the witness called police and continued
to watch the house for at least 45 minutes. No one left during
that time. When the police arrived, shortly after 8:00 a.m.,
defendant fled out the front door of the house and ran away.
Two officers pursued defendant, while another remained at
the house and took defendant's companion into custody.
According to one of the officers, the companion "had a really
young look about her face," but was "[a]t least a teenager."

After a lengthy chase and physical struggle, police,
with the assistance of a canine unit, apprehended defendant.

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One of the arresting officers testified that defendant
"show[ed] all the classic signs of [being under the influence
of] some sort of stimulant": he "was real fidgety," seemed
"really, really, extremely anxious," and "couldn't stop mess-
ing with his clothes." When asked whether defendant
appeared to be under the influence of marijuana, the officer
noted that he complained of cotton mouth and had bloodshot
eyes, but opined that defendant had not used marijuana. The
officers did not find drugs on defendant's person, in the back-
pack that he had been carrying, or in the house from which
defendant had fled, but, as noted, they did find two lighters in
defendant's pockets.

Some time later, one of the officers interviewed
defendant at the police station. When asked why he had gone
into the house, defendant stated that "he hadn't been to sleep
in quite a few days" and that he had wanted to smoke some
marijuana to "calm down." Defendant admitted that he had
not had permission to go into the house but stated that "[n]o
one was around to say no." He also admitted that he had
invited his female companion into the house and that, once
inside, he had given her a marijuana "roach" to smoke. When
asked how old his companion was, he replied "I don't know,
young"; the officer asked him to guess, and defendant stated,
"Maybe 18, maybe not."

Based on that incident, defendant was charged with,
among other things, second-degree burglary. The state's the-
ory, as pleaded in the indictment, was that defendant had
unlawfully entered the vacant house with intent to distribute
a controlled substance to a minor therein. See ORS
164.215(1) (a person commits second-degree burglary if the
person "enters or remains in a building with intent to commit
a crime therein"); ORS 475.906 ("[I]t is unlawful for any
person to deliver a controlled substance to a person under
18 years of age."). Defendant waived jury trial, and the case
was tried to the court.

At the close of the state's case, defendant moved for a
judgment of acquittal, arguing that the state had failed to
adequately corroborate defendant's confession under ORS
136.425(1). That statute provides:

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"A confession or admission of a defendant, whether in
the course of judicial proceedings or otherwise, cannot be
given in evidence against the defendant when it was made
under the influence of fear produced by threats; nor is a con-
fession only sufficient to warrant the conviction of the defen-
dant without some other proof that the crime has been
committed."

(Emphasis added.) In other words, a defendant's confession is
not legally sufficient to support a conviction unless the state
has corroborated that confession with some other evidence of
the crime.

Defendant argued that the requirement of ORS
136.425(1) had not been met because the state had failed to
provide any evidence, aside from defendant's confession,
tending to show that defendant had intended to distribute a
controlled substance to a minor when he entered the house.
The trial court denied defendant's motion, concluding that
the state was not required to corroborate defendant's intent
and that it had satisfied its burden under ORS 136.425(1) by
submitting evidence to corroborate defendant's unlawful
entry into the vacant house.

As noted, the Court of Appeals reversed. The court
explained that ORS 136.425(1) requires the state to provide
some proof, independent of the confession, that "the" crime to
which the defendant confessed, rather than some other
crime, has been committed. Because unlawful entry alone
would constitute the offense of criminal trespass-not bur-
glary-the court determined that corroboration of that ele-
ment alone was insufficient to sustain a burglary conviction.
Instead, the state was required to corroborate defendant's
intent to commit a crime (in addition to criminal trespass)
while inside the building, because "intent is, in fact, the
essence of [burglary]." Chatelain, 220 Or App at 492. The
court next concluded that the state had failed to provide
"some" evidence, apart from his confession, that defendant
had intended to commit the crime of distribution of a con-
trolled substance to a minor when he entered the vacant
house. As a result, the court reversed and remanded for entry
of conviction for second-degree criminal trespass, the lesser-
included offense that the state had corroborated. Id. at 496.

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The state petitioned for review, and we allowed review to
determine whether, to sustain a conviction for burglary, the
state was required to produce independent evidence of defen-
dant's intent to commit a particular crime in the building
that he unlawfully entered.

In determining whether the state met its burden
under ORS 136.425(1), we initially must determine what
exactly the statute requires the state to corroborate. The stat-
ute appears relatively straightforward on its face-ORS
136.425(1) requires some evidence, in addition to the confes-
sion, that "the crime" has been committed. One might inter-
pret that as requiring corroboration of every element of the
offense as pleaded in the indictment. However, this court
already has rejected that interpretation. Instead, ORS
136.425(1) codified the common-law "corpus delicti rule."
Thus, the second part of ORS 136.425(1) "can be para-
phrased: [a defendant may not be convicted] without some
evidence independent of the confession which tends to estab-
lish or to prove the corpus delicti.'" State v. Lerch, 296 Or
377, 394, 677 P2d 678 (1984). See also State v. Manzella, 306
Or 303, 305 n 1, 759 P2d 1078 (1988) ("Although ORS
136.425(1) does not use the term, 'corpus delicti,' it codifies a
version of the common law corpus delicti rule."). We therefore
begin with an explanation of the common-law corpus delicti
rule.

The corpus delicti rule emerged in England in the
1800s, apparently in response to celebrated cases in which
alleged murder victims turned up alive after their alleged
murderers already had been convicted and hanged for the
offenses. State v. Howard, 102 Or 431, 439, 203 P 311 (1921).
One of the more famous of those cases was Perrys' Case,
where a man disappeared and John Perry-a servant-was
accused of murdering him. Perrys' Case, 14 How St Tr 1312
(1661). Perry eventually confessed to the murder, implicating
his own mother and brother as well. The three Perrys were
executed based on John Perry's confession, but, a few years
later, the alleged victim "reappeared, hale and hearty, with a
weird tale of having been robbed, kidnaped and transported
to Turkey where he was held as a slave until he managed to
escape." Rollin M. Perkins, The Corpus Delicti of Murder, 48

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Va L Rev 173, 174 (1962).1 As a result of cases like Perrys'
Case, courts in England-and, later, courts in the United
States-developed the corroboration requirement known as
the "corpus delicti rule," which "demands that there be some
evidence other than the confession that tends to establish the
corpus delicti" of the crime charged.2 Kenneth S. Broun,
1 McCormick on Evidence § 147, 600 (6th ed 2006).

The corpus delicti of a given crime does not ordinarily
include every element of the crime that the state is required
to prove for conviction:

"Literally, the phrase means the 'body of the crime.' To
establish guilt, it is generally necessary for the prosecution
to show that (a) the injury or harm specified in the crime
occurred, (b) [that] injury or harm was caused by someone's
criminal activity, and (c) the defendant was the guilty
party. To sustain a conviction, the requirement of inde-
pendent proof of the corpus delicti demands only that the
prosecution have introduced independent evidence tending
to show (a) and (b). It is not necessary that the independent
proof tend to connect the defendant with the crime."

Lerch, 296 Or at 393 (quoting McCormick on Evidence § 158,
346-47 (2d ed 1972)). In the case of a homicide, for example,
the corpus delicti consists of evidence (a) that a death has
occurred and (b) that the death was caused by someone's
criminal activity. Lerch, 296 Or at 394. However, in the case
of burglary and some other crimes-attempt crimes, for
example-determining the extent of the "injury or harm," id.

1 Similar circumstances arose in the United States with the case of the Boorn
brothers. The Trial of Stephen and Jesse Boorn, 6 Am St Tr 73 (1819). In that case,
a man disappeared, and Stephen and Jesse Boorn-the man's brothers-in-law-
were accused of his murder. Upon arrest and questioning, Jesse accused Stephen.
Ultimately, Stephen confessed to the crime. Both brothers were convicted, but
Stephen-who had been sentenced to death-insisted that an advertisement be
published in an attempt to find the alleged victim. That advertisement ultimately
resulted in locating the alleged victim, who apparently disappeared simply because
he had grown tired of his wife. Rollin M. Perkins, The Corpus Delicti of Murder, 48
Va L Rev 173, 175-76 (1962).

2 Another approach, taken by the federal courts, is to require "substantial inde-
pendent evidence which would tend to establish the truthfulness of the [confes-
sion]," rather than independent evidence that the crime occurred. See Opper v.
United States, 348 US 84, 93, 75 S Ct 158, 99 L Ed 101 (1954) (adopting that
approach). Oregon has not adopted that approach.

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at 393, produced by the given crime is more difficult than it is
with crimes like homicide and arson.

One general principle that aids us in determining the
injury or harm produced by more complex crimes is the prin-
ciple that "elements affecting only the degree or seriousness
of the crime are not part of the corpus delicti that needs
to be corroborated." Kenneth S. Broun, 1 McCormick on
Evidence § 147, 602 (6th ed 2006). Thus, for instance, in an
aggravated murder case, the state need only corroborate that
the death occurred and that the death was the result of some-
one's criminal agency; the state need not corroborate the
additional factor or factors that elevate the crime from mur-
der to aggravated murder. See State v. Brown, 310 Or 347,
368, 800 P2d 259 (1990) (requiring corroboration of only
death and criminal agency in aggravated murder case). Sim-
ilarly, manslaughter and murder require the same corrobo-
ration-independent evidence of death caused by some crim-
inal agency-despite the fact that to prove murder, the more
serious crime, the state must prove a more culpable mental
state. See, e.g., State v. Fischer, 232 Or 558, 560, 376 P2d 418
(1962) (manslaughter); State v. Henderson, 182 Or 147, 190,
184 P2d 392 (1947) (first-degree murder).

With that background in mind, we turn to the partic-
ular issue in this case-identifying the elements of second-
degree burglary that require corroboration. To obtain a con-
viction for second-degree burglary, the state must prove,
beyond a reasonable doubt, that defendant (1) "enter[ed] or
remain[ed] unlawfully in a building," (2) "with intent to com-
mit a crime therein." ORS 164.215(1). Defendant maintains
that ORS 136.425(1) requires the state to provide some evi-
dence, independent of his confession, as to both of those ele-
ments. The state responds that unlawful entry alone consti-
tutes the "injury or harm" of burglary and, as a result, that it
need not corroborate defendant's intent to commit a crime in
the unlawfully entered building.

We agree with defendant and the Court of Appeals
that ORS 136.425(1) requires corroboration of defendant's
intent to commit a crime, in addition to corroboration of the
unlawful entry. As the Court of Appeals correctly stated, "[a]

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defendant's intent to commit a crime at the time of an unlaw-
ful entry is central to the crime of burglary." Chatelain, 220
Or App at 492. Since the time of Blackstone, the defendant's
intent to commit a crime in the building has been the char-
acteristic distinguishing burglary from mere trespass. See 4
William Blackstone, Commentaries on the Laws of England
227 (1769) ("[I]t is clear, that [the] breaking and entry must
be with a felonious intent, otherwise it is only a trespass.").
And, under current Oregon law, intent to commit a crime is
required to commit any degree of burglary; it continues to be
the primary element distinguishing burglary from criminal
trespass. See ORS 164.245 (person commits second-degree
criminal trespass if the person "enters or remains unlawfully
in a motor vehicle or in or upon premises"); ORS 164.215
(person commits second-degree burglary if the person "enters
or remains unlawfully in a building with intent to commit a
crime therein").

The state argues that the foregoing analysis conflicts
with the principle that the state is not required to corroborate
elements that affect only the degree or seriousness of the
crime. The state contends that burglary is merely an aggra-
vated form of criminal trespass, attempting to analogize
criminal trespass and burglary to homicide crimes, such as
manslaughter and murder. It argues that, although man-
slaughter and murder have distinct names, the legislature
intended murder to be simply an aggravated form of man-
slaughter, and our opinions have treated it as such. See
Fischer, 232 Or at 560 (manslaughter); Henderson, 182 Or at
190 (first-degree murder). In other words, the state argues
that, by corroborating defendant's unlawful entry, the state
corroborated the least-serious degree of burglary: criminal
trespass.

We disagree. In the case of criminal homicide, the
legislature has expressly grouped manslaughter and murder
together, despite their distinct names. ORS 163.005 provides,
in part:

"(1) A person commits criminal homicide if, without
justification or excuse, the person intentionally, knowingly,
recklessly or with criminal negligence causes the death of
another human being.

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"(2) 'Criminal homicide' is murder, manslaughter,
criminally negligent homicide or aggravated vehicular
homicide."

The legislature has not similarly grouped criminal trespass
and burglary together under one overarching label. Instead,
the legislature has set out the two crimes under separate
statutory schemes and has expressly created a separate
structure of seriousness for each crime, using the familiar
framework of varying degrees of each crime. See ORS
164.215 (second-degree burglary); ORS 164.225 (first-degree
burglary); ORS 164.245 (second-degree criminal trespass);
ORS 164.255 (first-degree criminal trespass).

It follows from the foregoing that, to satisfy its bur-
den under ORS 136.425(1), the state was required to provide
some evidence, independent of defendant's confession, both
(1) that defendant entered or remained unlawfully in a build-
ing, and (2) that he did so with intent to commit a crime-
here, distribution of a controlled substance to a minor-
therein.3

We now turn to the determinative issue in this
case-whether the state provided "some * * * proof," aside
from defendant's confession, that defendant unlawfully
entered the building with intent to commit a crime therein.
We emphasize that whether evidence is sufficient to satisfy,
ORS 136.425(1) does not present the same question as
whether that evidence is sufficient, on its own, to convict the
defendant. Even so, there must be some proof, aside from the
confession, as to the relevant facts. More specifically, " 'some
proof means that there is enough evidence from which the
jury may draw an inference that tends to establish or prove"
a relevant fact, Lerch, 296 Or at 398 (emphasis added)-here,
that defendant unlawfully entered a building with intent to
distribute a controlled substance to a minor therein.

Because defendant makes no argument that the
state failed to adequately corroborate his unlawful entry,4 we

3 We emphasize that, although the state is required to corroborate the two ele-
ments of the crime of second-degree burglary that is at issue in this case, we do not
hold, as defendant urges, that the state must corroborate every element of every
crime to satisfy ORS 136.425(1).

4 An eyewitness testified as to the entry, and the homeowner testified that she
had not given defendant permission to enter.

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must determine, using the standard described above,
whether the state provided adequate independent proof of
his intent to distribute marijuana to his minor companion
once inside.5 The state points to the following independent
evidence to corroborate defendant's confession as to that
intent: (1) defendant entered a vacant house early in the
morning; (2) defendant and his companion remained inside
for about 45 minutes; (3) defendant fled when police arrived
and later resisted arrest; (4) defendant exhibited signs of
stimulant use and marijuana use upon apprehension; and
(5) defendant had two lighters.

As to the first three pieces of evidence, the state
argues that that evidence demonstrates that defendant
"wanted to remain out of sight," remained in the house for "a
sufficient amount of time to use marijuana," and ultimately
attempted to escape, demonstrating that he knew that he
had engaged in wrongdoing. Certainly, that evidence tends to
support an inference that defendant knew he had engaged in
some wrongdoing. Of course, by entering the house at all,
defendant had engaged in wrongdoing.6 As the Court of
Appeals correctly noted, that evidence supports "no particu-
lar inference * * * about defendant's intent to distribute
marijuana" inside the house. Chatelain, 220 Or App at 494
(emphasis added). In other words, the evidence does not sup-
port an inference as to defendant's particular mental state,
which is the fact that must be corroborated.

As to defendant's drug use, there is certainly inde-
pendent evidence that defendant was under the influence of a
stimulant. However, there is little to no evidence that defen-
dant was under the influence of marijuana, the drug that he
admitted to giving to his female companion. Although one
officer noted that defendant-after an hour long chase and
physical struggle with police-"complained of cotton mouth"

5 The indictment charged that defendant entered the house with intent to dis-
tribute a controlled substance to a minor therein. However, the state's theory at
trial (based on defendant's confession) was that defendant intended to distribute
marijuana to his younger companion, rather than any other controlled substance.
We therefore refer to defendant's intent to distribute marijuana to a minor rather
than his intent to distribute controlled substances generally.

6 Indeed, defendant admitted that he knew he did not have permission to enter
the house and that he should not have gone inside.

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and had bloodshot eyes, that same officer opined, based on
his observations, that defendant "didn't get a chance to
smoke any * * * marijuana." That evidence does not support
an inference that defendant intended to or did smoke mari-
juana himself while inside the house, let alone that he
intended to distribute marijuana to his younger companion.
The state points to the two lighters that defendant had on his
person; however, police found no drugs, drug residue, or drug
paraphernalia anywhere in the house, on defendant's person,
or in defendant's backpack. The evidence of defendant's stim-
ulant use and his possession of two lighters does not support
an inference that defendant intended to distribute marijuana
to a minor when he entered the house.

Under ORS 136.425(1), the state was required to
present "some" evidence, however slight, apart from defen-
dant's confession, that he unlawfully entered a building with
intent to distribute a controlled substance to a minor therein.
Because the state failed to do so, the state did not meet its
burden under the statute. The trial court erred in denying
defendant's motion for judgment of acquittal, and the Court
of Appeals correctly remanded to the trial court for entry of
conviction for the lesser-included offense of criminal trespass
in the second degree.7

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is affirmed in part and reversed
in part, and the case is remanded to the circuit court for fur-
ther proceedings.

7 On review, the state does not renew the argument, made before the Court of
Appeals, that the court should remand for entry of conviction for the lesser-
included offense of criminal trespass in the first degree.