This crime may be proved without proving such elements of common law burglary as nighttime entry or that the building entered is a dwelling. See, e.g., State v. Eaton, 43 Or.App. 469, 602 P.2d 1159 (1979) (unoccupied building is not a dwelling and thus entry cannot support first degree burglary conviction, only second degree burglary conviction). Moreover, second degree burglary does not necessarily require behavior causing a serious potential risk to others.
We have applied that standard to a variety of situations that further inform the statutory distinction between a "building" and a "dwelling." In State v. Eaton, 43 Or. App. 469, 471-72, 602 P.2d 1150 (1979), rev den 288 Or. 335 (1980), we held that a dormitory for students, occupied for eight weeks each year and burglarized six months after the last occupant left for the year, was not a dwelling. We said, "where an eight week period of occupancy is followed by 44 weeks of vacancy, and where the burglary occurred months after the last occupant left, we conclude that the structure is not used `regularly or intermittently.'"
Defendant argues that State v. McDonald, supra, is distinguishable, because in that case there were readily identifiable people who were occupying the travel trailer, although on an intermittent basis; the owner's relatives and guests were using the trailer as sleeping quarters on that basis and, when the defendant entered it, the owner's daughter's boyfriend was planning to spend the night in it. Defendant relies on State v. Eaton, 43 Or. App. 469, 602 P.2d 1159 (1979), rev den 288 Or. 335 (1980), where we held that a summer camp building that was used only eight weeks a year as a retreat facility was not a "dwelling," because the entry occurred months after the last occupant had left. What we said in State v. McDonald, supra, about State v. Eaton, supra, is applicable here:
that a 2 1/2-month sojourn to Florida raised a factual issue as to temporary absence which the jury resolved in favor of the People. Courts in other jurisdictions that do not require actual physical presence at the time of the burglary have concluded that absences ranging from one month to two years may be considered temporary (see, for example, Bazroux v State, 634 S.W.2d 919 [Tex Ct App] [28-day business trip]; Middleton v State, 181 Ind. App. 232, 391 N.E.2d 657 [five-month vacation]; and Hamilton v State, 354 So.2d 27 [Ala App], cert denied 354 So.2d 30 [two years]). Analysis of the various authorities suggests that the following factors are relevant in considering whether absence is merely temporary: (1) the nature of the structure, i.e., its adaptation at the time of the burglary to occupancy by a person (see, e.g., State v Albert, 426 A.2d 1370 [Me], where summer camp burglarized in January was considered a dwelling because it was adapted for overnight accommodation; but see, State v Eaton, 43 Or. App. 469, 602 P.2d 1159; State v Celli, 263 N.W.2d 145 [SD]; Smart v State, 244 Ind. 69, 190 N.E.2d 650; and White v State, 312 S.W.2d 639 [Tex Crim App], where seasonal homes either unfurnished or without utilities were found not to constitute dwellings); (2) the intent of the owner to return (People v Traylor, 100 Mich. App. 248, 298 N.W.2d 719; State v Lisiewski, 20 Ohio St.2d 20, 252 N.E.2d 168), and (3) whether, on the date of the burglary, a person could have occupied the structure overnight (State v Lisiewski, supra). If there was an intent to return, the length of absence is generally considered irrelevant (People v Traylor, supra;Hamilton v State, 354 So.2d 27, supra; cf. Starnes v Commonwealth, 597 S.W.2d 614 [Ky]; Ann., 20 ALR4th 349).
The evidence clearly shows that the owners' relatives and guests came to and went from the trailer at intervals. Defendant relies primarily on State v. Eaton, 43 Or. App. 469, 472, 602 P.2d 1159 (1979), rev den 288 Or. 335 (1980), where we held: "Where an eight-week period of occupancy is followed by 44 weeks of vacancy, and where the burglary occurred months after the last occupant left, we conclude that the structure is not occupied 'regularly or intermittently.