Burglarizing your mother’s house?
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This very odd story today leads me to ask the question in the title of this post. Luke Stetson and his girlfriend stole his mother’s chihuahua from the mother’s house and held it for ransom. They demanded hundreds of dollars. Hundreds. Apparently the transfer was made, but they were arrested trying to flee. Details haven’t been released, but I wonder if they themselves took the dog back to the mother for the money exchange.
Anyway, this led me to wonder whether you can be convicted of burgling your own house or your mother’s house. The burglary statute provides that one is guilty of burglary “when he enters or remains unlawfully in a building with intent to commit a crime therein”. It’s the second clause that interests me. “Remains unlawfully”. Caselaw has defined that as a situation in which an individual has permission to enter the premises, but then that permission is subsequently withdrawn - either explicitly or implicitly. State v. Henry (”even if one is lawfully admitted into a premises, the consent of the occupant may be implicitly withdrawn if the entrant terrorizes the occupants”).
However, every case that has dealt with that portion of the statute (at least the ones that I found) involve an attack or assault on the home-owner. The theory is that while you invite someone over, that invitation is rescinded once they attack you or commit a crime. Now bear with me here.
If Stetson had permission to enter, stay and take whatever he wanted from his mother’s home, can he be convicted of burglary for taking the dog? The predicate crime being, of course, larceny. Larceny, in this context, would be defined as:
(a) A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and: (1) The property or service, regardless of its nature and value, is obtained by extortion, (2) the value of the property or service exceeds ten thousand dollars, (3) the property consists of a motor vehicle, the value of which exceeds ten thousand dollars, or (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.
Clearly, it would have to be under sub (a). So let’s look further:
A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:
(5) Extortion. A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will: (A) Cause physical injury to some person in the future; or (B) cause damage to property; or (C) engage in other conduct constituting a crime…
So there are questions aplenty. First, it would seem clear that he “wrongfully withheld”. But is it? Would a dog be “property”? Even if it is, did he “compel or induce another person to deliver such property”? Or is the “property” money? Because he clearly compelled the mother to “deliver money”. So he could “wrongfully obtain” this “money” by “instilling fear” that if it is not delivered, he will “cause damage to property”. Which property is that last “property”? Would that be the dog?
Now, getting back to burglary. The crime itself - the extortion - didn’t occur till after he left the mother’s premises. So did the crime occur while in the house? If not, can it be burglary?
I think the answer will be yes, but it’s not a decided question by any means. Thoughts?
PS: I love elements analyses.
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I have had the pleasure of dealing with both issues.
Let’s take the “property” issue first. Back when I was in a legal clinic in law school, we deal with case regarding whether seizing an individual’s dogs (he ran a kennel) because his premises were somehow in contravention of the kennel ordinance was a deprivation of property — whether he even had a property interest in the dog. It’s a different issue, sure, but we researched it and decided: Yes, a dog may be property. Thus, in Mr. Stetson’s case, the predicate offense of larceny was, well, predicated upon the notion that the property at issue was the dog (not the money he asked for). The most obvious prosecution theory is that he went into the home and stole a dog. Cool, huh?
On to the dwelling. I had a case in which a client was charged with B&E, that state’s LIO of Burglary. His defense was that there was no B&E as he was lawfully permitted to be on the premises. He lived there. And even though his Mom was all, “I kicked him out,” I was all, “Yeah, no. He lives there.” The added wrinkle, of course, was that the mother kicked him out because she was afraid of his chronic masturbation. At the time of the offense, he was an undiagnosed schizophrenic, so the whole thing blew up into a commitment hearing anyway. No one wanted him, and at the end of the day, the prosecutor liked my “he lived there” defense, and basically dropped the case on the promise that I not tell anyone.
But I digress.
In Mr. Stetson’s case, more facts are needed. Was he living with Mom at the time of the alleged offense? What’s his deal? Is there any way to demonstrate that he did not remain unlawfully? I think if it wasn’t his residence, then consent to remain lawfully can still be rescinded, assault or not. That’s what cool about having your own place: you get to kick people out whenever you want. It’s fun.
So that’s my $0.02, and I really didn’t answer either of your questions at all. Yay.
I just remembered that the correct verb is “burglarizing”. I like “burgling” too, though.
Many years ago, my client was charged with breaking and entering into the occupied dwelling of another, with the intent to commit larceny therein, our statutory form of burglary. The home was the home of the defendant’s mother’s paramour. He had been taken to the hospital by ambulance at about 10 PM, and died around midnight. the break-in occurred at about 1:30 AM the next morning. My theory was that since mom didn’t live there, it wasn’t an “occupied” dwelling after the owner died. The judge denied my motion to dismiss, but the prosecutor let my client plead to an attempted larceny in a building (a 2-year misdemeanor), instead of the 15-year B&E.
Gideon! Norm Pattis enters PD territory with his blog post today: http://bibliophile.blogs.com/norm_pattis/2008/03/honest-marketin.html