It depends on what “unlawfully remains” means

Lookin' goooood!

So the other day, I went to Miranda’s house. While there, I noticed she had a new iPod Nano. The thing looked damn good. So I thought I’d get myself one. Then I remembered that I was a public defender and I didn’t make much money. So I started thinking. What if I took it and didn’t tell her? What if I took it and didn’t return it? What if I took it and then I thought better of it and put it back, all without her knowing?¹

What crime would I be guilty of? (Yes, I am that nerdy.)

There is an easy answer and a difficult question. The easy answer, of course, is Larceny in the Sixth Degree, a C misdemeanor. The difficult question, however, is whether I am guilty of Burglary.

The burglary statutes have several common elements. Judging by the title of this post, you know which one I want to focus on. Here’s the entire Burglary 2nd statute:

(a) A person is guilty of burglary in the second degree when such person enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.

Since Miranda invited me to her house, I am not there unlawfully. She is a person other than a participant and is actually present (she’s toolin’ around in the basement), so that element is satisfied. The only question then is whether I remained unlawfully with the intent to commit a crime therein.

The usual explanation of “remains unlawfully” uses the example of someone who enters a public building, like a bank, lawfully and then hides and waits for it to close for the day. He is then there unlawfully:

A person “enters or remains unlawfully” in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.’ (Emphasis [omitted].) General Statutes § 53a-100(b). . . . ‘A license in real property is defined as a personal, revocable, and unassignable privilege, conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.’ (Emphasis added.) 25 Am. Jur. 2d, Easements and Licenses § 123. Generally, a license to enter premises is revocable at any time by the licensor. Id., § 128. It is exercisable only within the scope of the consent given. [Emphasis added.] Miller v. Grossman Shoes, Inc., [186 Conn. 229, 237 (1982)]. . . . The phrase, ‘licensed or privileged,’ as used in General Statutes § 53a-100(b) is meant as a unitary phrase, rather than as a reference to two separate concepts.” State v. Grant, 6 Conn. App. 24, 29-30 (1986).

So the license to be in Miranda’s house could have been revoked. But does she need to do it explicitly? The Connecticut Supreme Court says no:

in State v. Reyes, 19 Conn. App. 179, 192-3 (1989), the Appellate Court held that “[e]vidence that a defendant subsequently pointed a gun at one who had the right to admit him to the premises, and did admit him to the premises, clearly can form the basis for the inference that consent to remain was implicitly withdrawn and thus that the individual ‘unlawfully remained’ within the meaning of the statute.”

State v. Allen, 216 Conn. 367 (1990). So I guess it’s clear that when I formed the intent to deprive Miranda of the iPod, I had the intent to commit a crime. But did I remain unlawfully? In both Reyes and Allen, the homeowner was faced with the defendant and could see the illegal actions of the defendant, thus having the opportunity to “implicitly” withdraw permission. What if Miranda had no idea that I was thinking about taking the iPod? Is that sufficient to complete an implicit withdrawal?

Now, stretching the hypos to the limit, what if the iPod is on a table next to the back door and I see it on my way out of the house? What if I take the iPod Nano and take one step, which places me outside her dwelling? Am I still guilty of burglary?

The question then becomes, in my opinion, what is meant by “remains”. The general statutes provide no guidance and I’m not going to bother looking at the legislative history, so let’s look at a dictionary instead (plain meaning, etc. etc.):

–verb (used without object)
1.     to continue in the same state; continue to be as specified: to remain at peace.
2.     to stay behind or in the same place: to remain at home; I’ll remain here when you go to the airport.

The word “remains” definitely connotes the physical act of staying in the same place, or occupying the same physical area as you were prior to the act or incident or temporal marker.

But for how long? Surely, I “remained” in her house for one second as I pocketed the iPod Nano. But the complete act was that of “leaving”, not remaining. The crime was completed by the time I picked up the iPod and placed it in my pocket, as distinguished from Reyes and Allen above, where the crime continued for a longer period of time.

So is there a temporal requirement inherent in “remains”? Can the “remaining” be for a second? A nanosecond? Is that absurd and unworkable?

And what of the scenario where I pocket the iPod Nano, hang around for a few minutes looking at pictures on a fridge and then decide that I was being silly and put it back, Miranda none the wiser.

Have I committed a burglary? I think the answer would have to be yes.

Thoughts?

1. Miranda does not have a house, nor has she invited me in ever, nor have I ever formed the intent to commit a crime therein even if I have ever been therein invited for social engagements. Short form: It’s a freakin’ hypo, you nutjobs!

photo credit: Fribirdz