BURGLARY. APPURTENANT OR NOT IS THE KEY QUESTION

by Alex Kornfeld

Criminal LawMarch 7, 20190 comments 0 Likes

BURGLARY. APPURTENANT OR NOT IS THE KEY QUESTION IN STATE V. JOHN KENNETH MASSEY, JR.

John Kenneth Massey, Jr. was charged with first degree burglary. Prior to trial Massey’s lawyer moved to quash the first-degree burglary indictment because the building that Massey allegedly burglarized was on a separate piece of land than the victim’s residence and it was used for the victim’s business, not as a dwelling.

The land of which the business was located was titled in his Uncle Bill’s name, not his name. The victim also stated the building that was burglarized was primarily used as a storage building for belongings like four-wheelers, boats, and tools.

The Government argued the storage building was appurtenant to the family dwelling. Although the building was titled in Uncle Bill’s name it was a mere 200 feet from victim’s residence. Over the government’s objection, the Court granted Massey’s motion to quash the indictment reasoning that victim did not own the piece of land (remember Uncle Bill did) or the storage building nor was it appurtenant to the residence. The Court further stated the appropriate charge is actually burglary, second degree.

The government attempted to argue for the first time before the South Carolina Court of Appeals that the lower court lacked authority to quash the indictment because burglary is a crime of possession, not a crime of ownership. The South Carolina Court of Appeals did not rule on this argument because it was unpreserved.

In layman terms, the Court found the storage building wasn’t a dwelling which was a requirement to meet the elements of first-degree burglary in this case. To be first degree burglary in this case the structure needed to be within 200 yards of a dwelling AND appurtenant. The government couldn’t prove the latter because the Court found that a building unattached to a residence on a separate parcel of land isn’t appurtenant.

So, what difference does it make if it’s burglary first or burglary second? A whole lotta time…A whole lotta time.

Source: https://www.sccourts.org/opinions/HTMLFiles/COA/5630.pdf

On June 10, 2020 The South Carolina Supreme Court Reversed the Court of Appeals Decision and Remanded the Case to the trial court.

Source: https://www.sccourts.org/opinions/HTMLFiles/SC/27981.pdf

I HAVE INCLUDED THE BURGLARY LAWS FOR REFERENCE
SECTION 16-11-311. Burglary; first degree.

(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:

(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:

(a) is armed with a deadly weapon or explosive; or

(b) causes physical injury to a person who is not a participant in the crime; or

(c) uses or threatens the use of a dangerous instrument; or

(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or

(3) the entering or remaining occurs in the nighttime.

(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, “life” means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.

HISTORY: 1985 Act No. 159, Section 2; 1995 Act No. 83, Section 17.

SECTION 16-11-311. Burglary; first degree.

(A) A person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intent to commit a crime in the dwelling, and either:

(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:

(a) is armed with a deadly weapon or explosive; or

(b) causes physical injury to a person who is not a participant in the crime; or

(c) uses or threatens the use of a dangerous instrument; or

(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or

(3) the entering or remaining occurs in the nighttime.

(B) Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, “life” means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years.

HISTORY: 1985 Act No. 159, Section 2; 1995 Act No. 83, Section 17.

SECTION 16-11-312. Burglary; second degree.

(A) A person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein.

(B) A person is guilty of burglary in the second degree if the person enters a building without consent and with intent to commit a crime therein, and either:

(1) When, in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:

(a) Is armed with a deadly weapon or explosive; or

(b) Causes physical injury to any person who is not a participant in the crime; or

(c) Uses or threatens the use of a dangerous instrument; or

(d) Displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

(2) The burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or

(3) The entering or remaining occurs in the nighttime.

(C)(1) Burglary in the second degree pursuant to subsection (A) is a felony punishable by imprisonment for not more than ten years.

(2) Burglary in the second degree pursuant to subsection (B) is a felony punishable by imprisonment for not more than fifteen years, provided, that no person convicted of burglary in the second degree pursuant to subsection (B) shall be eligible for parole except upon service of not less than one-third of the term of the sentence.

HISTORY: 1985 Act No. 159, Section 2; 2010 Act No. 273, Section 11, eff June 2, 2010.

SECTION 16-11-313. Burglary; third degree.

(A) A person is guilty of burglary in the third degree if the person enters a building without consent and with intent to commit a crime therein.

(B) Burglary in the third degree is a felony punishable by imprisonment for not more than five years for conviction on a first offense and for not more than ten years for conviction of a second offense according to the discretion of the Court.

HISTORY: 1985 Act No. 159, Section 2.