Whether a Building is a Dwelling Depends on the Building’s Actual Use

State v. McNeary, 2011 UT App 4 (Utah Court of Appeals January 6, 2011).

McNeary was convicted of 2^nd degree felony burglary.  He appealed arguing that the building that he burglarized was not a dwelling; the building being a recently constructed home which had never been occupied.  The Court of Appeals agreed that the building was not a dwelling under that statute because the actual use was not that of an overnight dwelling.  Therefore the burglary charge should be reduced.  Reversed with instructions to enter a conviction of a 3^rd degree felony burglary. 

Full Decision available at http://www.utcourts.gov/opinions/appopin/mcnearney010611.pdf