State v. Fuller

In this appeal from a conviction for burglary in the first degree, ORS 164.225, defendant, relying on what he contends is the state’s failure to prove an essential element of the crime charged, requests this court to reverse and remand for entry of judgment for the lesser crime of burglary in the second degree.1 We affirm.

The indictment, charging burglary in the first degree, alleges that defendant, while in the building, “was armed with a burglar’s tool, to-wit: a hammer * * It is this element that elevates the crime to burglary in the first degree. Defendant used a rock to gain entry into a…