Is Anyone Home? Dwelling Definition Reverses Burglary Conviction

State v. Downing, No. 116,629 (Kan. Jan. 24, 2020).

Issue: Does a house meet the definition of “dwelling” for the purposes of Kan. Stat. Ann. § 21-5807(a)(1) if the house is uninhabited at the time of a burglary and the owner had no plans to live in or to rent the house?

Answer: No. The definition of “dwelling” requires a subjective intent to utilize the place for “human habitation,” here there were no such plans.

Facts:   Charity Downing was convicted of burglary of a dwelling.  At trial, the owner of the burglarized farmhouse testified that, though he and other family members had lived there at various times, no one had lived in the farmhouse for two years.  The farmhouse did hold family belongings and because of this, the owner was unable to rent it.  The State argued that intent to use the farmhouse as a dwelling could be inferred from the building’s character.

Discussion:  The statutory definition of dwelling is “a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence.”  This definition establishes a present-intent requirement, evidenced by the use of “is.”  Furthermore, the statute makes burglary illegal even if the building is not a dwelling. This points to a subjective, present-intent requirement, rather than a building design requirement, to distinguish dwellings from non-dwellings. 

Without evidence that the building was used for human habitation, the farmhouse could not meet the statutory definition of “dwelling.” The owner’s limited testimony on this issue established that he did not intend to rent the farmhouse. Therefore, the element requiring the burglarized building be a dwelling was not met and the conviction was overturned. 

Key Authorities:

Kan. Stat. Ann. 2018 Supp. 21-5807(a)(1).

Kan. Stat. Ann. 2018 Supp. 21- 5111(k).

State v. Alvis, 53 P.3d 1232 (Kan. 2002).

Herrick v. State, 965 P.2d 844 (Kan. Ct. App. 1998).

State v. Campbell, No. 112,159, 2015 WL 5458574, at *4 (Kan. Ct. App. 2015) (unpublished opinion).