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

Intent to Commit a Felony Can be Formed While Unlawfully Remaining

State of Utah v. Marcus Alexander Garcia, 2010 UT App. 196, (Utah Court of Appeals July 15, 2010).

Garcia entered the room of a former neighbor; he held her down, covered her mouth, and forced his fingers down her throat cutting her lip.  He then put the victim’s head into a pillow and pulled up her shirt.  The victim’s mother ran into the room and the Defendant escaped through the window.  Garcia was charged with burglary and attempted rape.  He was convicted of burglary, but acquitted of the attempted rape charge.  He appealed.  He argued that since he was acquitted of the rape which was the underlying felony to the burglary, he did not have the requisite intent for the burglary (i.e. breaking and entering or remaining with intent to felony theft or assault).  The Court of Appeals disagreed and affirmed the trial court, and said that the assault, whether or not it was an attempted rape, could serve as the underlying crime.  Even though he may not have entered with intent to commit a felony or assault, the formation of that intent while unlawfully remaining is sufficient to meet the statute.

Full Decision available at http://www.utcourts.gov/opinions/appopin/garcia071510.pdf