When is a Building a Dwelling for Purposes of Burglary

In today’s blog, we look at what qualifies a building to be a “dwelling” for purposes of the Indiana burglary statute.  There is a huge difference.  If a person burglarizes a building that isn’t a dwelling then it is a Level 5 Felony and the potential is for 1 to 6 years in prison, however, if the building qualifies as a dwelling, then the crime is a Level 4 Felony and the penalty jumps all the way to 2 to 12 years in prison.  As you might guess, this huge difference has led to plenty of litigation over whether a building is a dwelling or just a building.  The legislature has codified the serious nature of breaking into a building where someone lives, thus the difference between breaking into a storage building and breaking into someone’s home.

In Middleton vs. State, the Defendant was convicted of breaking into a dwelling and appealed whether the building was a dwelling.  Essentially, the owner of the home was doing the snowbird living and was out of town in a sunnier climate for several months.  The Defendant argued that the building was not being used as a dwelling at the current time and thus should not have allowed for a conviction on the B felony.  However, the court of appeals disagreed, they held that while the person may have been vacationing for 5 months, the home remained their primary dwelling, thus a conviction on the B Felony was proper.

In Watt vs. State, the Defendant was convicted of Residential Burglary and he appealed the issue of the structure as being a dwelling.  His argument focused on the fact that the owner had left the residence and was in a nursing home, so the structure could no longer be considered a dwelling.  The Court of Appeals disagreed.  The Court focused on the fact that the victim had lived there for 55 years, had all of her clothing and belongings in the home, and had an apparent plan to return to the home.  Therefore, the appeal was denied and the Court found it was a dwelling, despite the owner having not lived there for several months.  Had the owner moved out their belongings this likely would have been overturned.

In Welch, vs. State, the victim had temporarily left his apartment and lived with his parents awaiting the arrival of new furniture, after his roommate had moved out.  The Defendant argued that the temporary relocation made the apartment no longer a dwelling.  The Court, again, disagreed and said the temporary relocation did not keep the apartment he was returning to from being a dwelling.

There have been a number of cases where a Defendant has claimed that breaking into a garage did not count as breaking into the dwelling.  In most instances if the garage is attached to the home and entry to the home could be made from the garage, then the attached garage itself will be classified as part of the dwelling.  However, a detached garage or a storage shed would not.

So what about a summer retreat, cabin, or lake house?  These aren’t primary residences so they can’t qualify as a dwelling right?  Well, that used to be the law, and a number of cases held that a cabin or summer cottage could only be a residence if, at the time it was broken into, someone had been staying at the building in question.  However, in Jones vs. State, the Court of Appeals cited new statutory definitions of “dwelling” that included terms such as temporary and movable as the reason to allow a cabin to qualify.  However, the Court did leave the door open a bit by pointing out that the owner was, in fact, staying at the cabin at the time.

In conclusion, the Court has been very cautious when it comes to defining a dwelling.  If a person has been, could have been, or might be sleeping in the building, the Court is likely to find it is a dwelling.  Homes that have been abandoned, vacated, or put up for sale and moved away from, are likely not going to be considered a dwelling.

Banks & Brower is a law firm with Offices in Indianapolis and Fishers, Indiana and handles criminal cases throughout the State of Indiana.  Call (317) 870-0019 to contact us today or click here to learn more about the attorneys.