Aggravated burglary requires proof of presence at time of burglary

 Lydia Krebs and Peter Maharry won in State v. Daws, No. 108,716 (Kan. February 19, 2016), reversing a Wyandotte County aggravated burglary conviction. The state charged Mr. Daws with entering a building with intent to commit a theft while a human being was present. But the only evidence showed that no one was present in the building until after Mr. Daws had entered. The KSC majority held that there are different ways to commit burglary and the state is required to prove what it charges:

As charged and instructed in this case, aggravated burglary is defined as "without authority, entering into . . . any building . . . in which there is a human being with intent 11 to commit . . . theft . . . therein." . . . And because aggravated burglary is complete once unauthorized entry occurs, the Court of Appeals view impermissibly extends the crime until the burglar leaves or completes the ulterior felony. 

It is "a basic premise of Anglo-American criminal law that the physical conduct and state of mind must concur." 1 LaFave, Substantive Criminal Law § 6.3(a), p. 451 (2d ed. 2003) (discussing actus reus and mens rea). In the context of aggravated burglary, this idea is embodied in this court's holdings that "[t]o support a conviction for aggravated burglary, the intent to commit a felony and the unauthorized entering into or remaining within must at some point in time coexist." But the aggravated burglary statute's human presence element is not governed by this rule because it does not involve the required physical conduct (entering into) or the state of mind (intent to commit the ulterior crime). The human presence element is more aptly described as an attendant circumstance. See 1 LaFave, Subst. Crim. L. § 6.3(b). When the elements of a criminal statute include an attendant circumstance, that attendant circumstances must concur with the other elements. 1 LaFave, Subst. Crim. L. § 6.3(b) p. 12 455 ("With crimes which require physical conduct, mental fault, and attendant circumstances, the circumstances must concur with the conduct and fault."). To hold otherwise collapses the two means of committing aggravated burglary.

In light of the uncontroverted testimony that Daws spent a day inside the victim's home before the homeowner returned, the remaining within means of committing aggravated burglary was the appropriate charge. Since the jury was only instructed on the entering into means of committing aggravated robbery and the victim was not present when Daws entered the residence, we hold there was insufficient evidence to sustain the aggravated burglary conviction and reverse that conviction. This necessarily requires us to overrule Reed and its progeny as they relate to the crime of aggravated burglary when the defendant is only charged with unauthorized entering into a building or residence and another person is not present at that time.