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Kansas Supreme Court: State Failed to Prove Building Was a Dwelling

by Douglas Ankney

In a case of first impression for the Supreme Court of Kansas, the Court affirmed the decision of the Court of Appeals that had reversed the burglary conviction of Charity Downing because the State failed to prove the building allegedly burgled was a “dwelling” as defined by statute.

At Downing’s trial, the owner, Jeff Keesling, testified that the farmhouse was over 100 years old and that people had lived in the house up until three years ago. When asked if the house was basically intended for use as a residence even though it was unoccupied at the time, Keesling answered, “Yes, I would like somebody to live there but I can’t. It’s too dangerous to rent it to somebody with all my stuff out there.”

The district court’s instructions told the jury that to convict Downing of burglary they had to find that she (1) knowingly entered a dwelling, (2) without authority, and (3) with the intent to commit a theft therein. However, nowhere did the district court define the term dwelling. After the jury convicted Downing, defense counsel moved for a judgment of acquittal - arguing the State did not prove the structure in question was being used as a dwelling. The district court denied the motion, and Downing appealed. The Court of Appeals reversed, agreeing with Downing. The Kansas Supreme Court granted the State’s petition for review.

The Court observed that “[u]nder the Kansas Criminal Code, ‘(a) Burglary is, without authority, entering or remaining within any: (1) Dwelling, with intent to commit a felony, theft, or sexually motivated crime therein ....’” K.S.A. 2018 Supp. 21-5807. “Dwelling” is defined as “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.” K.S.A 2018 Supp. 21-5111(k).

The Court, having not previously decided this issue, relied on decisions of the Court of Appeals. In State v. Alvis, 53 P.3d 1232 (Kan. 2002), the defendant had been charged with burgling two houses. The first house was determined to be a dwelling because, although unoccupied and under construction at the time of the alleged offense, the owner intended to move into it five days after the alleged offense. The second home, also under construction, was held not to be a dwelling because there was no evidence that habitation was imminent or even whether it was capable of habitation. 

The Court also distinguished and criticized Herrick v. State, 965 P.2d 844 (Kan. 1988), wherein the Court of Appeals correctly determined that the Legislature intended the word “dwelling” to include more than just a “residence” but had incorrectly concluded that a “present, subjective intent” to use it for habitation was “an improper touchstone for determining dwelling status under the statute.” On the contrary, the Court explained that the statute — K.S.A. 2018 Supp. 21-5111(k) — specifies that to qualify as a dwelling, the place “is used or intended for use as a human habitation, home, or residence.” 

While Keesling’s testimony expressed a preference to have someone live in the building, the Court concluded that that is insufficient to constitute a “present intent” for the structure to be used as a “human habitation, home, or residence.” 

Accordingly, the Court affirmed the judgment of the Court of Appeals reversing the judgment of the district court. See: State v. Downing, 456 P.3d 535 (Kan. 2020). 

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State v. Downing



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