Residential burglary requires proof of contemporaneous intended use of building

Michelle A. Davis won in State v. Downing, No. 116,629 (Kan. January 24, 2020), obtaining reversal of a Reno County burglary conviction. The state charged burglary of a dwelling, but did not provide testimony that the building entered met the definition of a dwelling. The owner of the building indicated that no one lived in it at the time and that there were no plans for someone to live in it or rent it. The state argued that the jury could infer the purpose of the building. The KSC held that proof that the building was a dwelling was an essential element of the offense:

K.S.A. 2018 Supp. 21-5807(a)(2) also supports a present-intent requirement to distinguish between a dwelling and a nondwelling structure, rather than simply using a building design approach. That statute makes burglary of a place illegal even if that place is "not a dwelling" and it gives examples where that crime can occur—enumerating building designs that would ordinarily be considered in the abstract as "intended for use as" habitations, such as manufactured homes and mobile homes. This strongly points to something else besides building design to differentiate dwelling from nondwelling burglaries. 

We agree with the [COA] panel. Absent proof the place burgled was used as a human habitation, home, or residence, the statute's plain language requires a showing of proof that, someone had a present, subjective intent at the time of the crime to use the place burgled for such a purpose. And based on that, the sufficiency question in Downing's case turns on whether the evidence at trial, viewed in the light most favorable 11 to the State, was sufficient for "a rational fact-finder" to find that the farmhouse was "intended for use" as a human habitation, home, or residence when the crime occurred. 

Reviewing the state's evidence with this test, the KSC held that the state not prove that the building was a dwelling at the time of the alleged entry.

Finally, the KSC rejected the state's request to have the case remanded with directions to resentence Ms. Downing for nonresidential burglary as a lesser-included offense. The KSC held that the state had failed to sufficiently argue the point:

The State claims the crime of burglary of a structure under K.S.A. 21-5807(a)(2) is a lesser included offense of burglary of a dwelling under K.S.A. 21-5807(a)(1), making remand appropriate. But this argument was not raised until the State's petition for review in our court. It should have been presented as an alternative argument to the lower courts. Because of that, we decline to address it on the merits. Adding to the State's difficulties, it failed to give any statutory analysis supporting its claim, which supplies yet another basis for declining to entertain the question at this late stage.

As a result, the KSC simply reversed the burglary conviction.