McKenzie v. State

BARBERA, J. We decide in this case whether an apartment that is between tenancies is a “dwelling,” as that term is used in Maryland’s fourth degree burglary statute, Maryland Code ¹²² (2002), § 6-205(a) of the Criminal Law Article (“CL”). For the reasons that follow, we answer “yes” to that question, and, as a consequence, affirm the fourth degree burglary conviction of Petitioner, Patrick McKenzie. I. Apartment 14 is located within the rental complex known as Pepper Tree Farm, in Montgomery County, Maryland. On September 4, 2007, the day in question, no tenant currently resided in that apartment.

The most recent tenant had vacated the apartment two weeks earlier, and a new tenant had signed a lease and was scheduled to move into the apartment on September 5, 2007. Petitioner was discovered in apartment 14 on September 4 by Kevin Leftwood, the service manager for the company that manages Pepper Tree Farm. Mr. Leftwood was at the time performing a routine check of the apartments that were about to be turned over to new tenants. When last he had checked apartment 14, the rooms were freshly painted, the carpet was replaced, and the appliances evidently were in working order.

Mr. Leftwood returned to the apartment on September 4 to ensure that the door keys and the lock on the mailbox worked, and the apartment was still in good condition for the new resident. As he approached the apartment, he noticed that the bottom of the front door and the door frame near the lock were bent. He entered the apartment and came upon Petitioner, who called out, “I told you all we should’ve got up.” Mr. Leftwood asked Petitioner why he was there and received no response. Mr. Leftwood left the apartment and called 911.

While speaking with the police, Mr. Leftwood spotted Petitioner and two other men leaving the building. He followed the men and was able to provide the police with an immediate description of them and their location. The police responded and in short order arrested all three men. Mr. Leftwood returned to apartment 14 and observed cigarette burns on the carpet, stains on the ceiling of the dining room, and burn marks on the dining room wall. ¹²³ Petitioner was charged with committing fourth degree burglary of a dwelling, fourth degree burglary of a storehouse, criminal trespass, and malicious destruction of property.

He was tried before a judge of the District Court of Maryland, sitting in Montgomery County, who convicted him of fourth degree burglary of a dwelling and malicious destruction of property, and acquitted him of the remaining charges. Petitioner appealed the convictions and was tried de novo before a jury in the Circuit Court for Montgomery County. The jury found Petitioner guilty of burglary and acquitted him of malicious destruction of property. The court later sentenced Petitioner to three years’ incarceration, with all but one year suspended, and two years of probation.

Petitioner filed a petition for writ of certiorari, presenting two questions: I. Is an unfurnished, vacant apartment a “dwelling” within the meaning of Maryland Code, Ann., Criminal Law Art. § 6-205(a) (2002)?

II

Was the evidence sufficient to convict Petitioner of fourth degree burglary where the evidence established that he broke and entered an unfurnished, vacant apartment, which, at the time of the breaking, was unoccupied? We granted the petition to decide both questions. McKenzie v. State, 405 Md. 63 , 949 A.2d 651 (2008).

II

Fourth degree burglary of a dwelling, like the related crimes of burglary in the first, second, and third degrees, is a relatively new statutory offense in Maryland. Judge Orth, writing for the Court in Warfield v. State, 315 Md. 474 , 554 A.2d 1238 (1989), recounted the early history of burglary and the evolution of the statutory offenses. Judge Orth noted that “[t]he common law felony of burglary crossed the seas from England and became a part of the common law of Maryland.” Id. at 493 , 554 A.2d at 1247 . Burglary long retained its status as a common law offense, with its original common law meaning—“the breaking and entering of the dwelling house of ¹²⁴ another in the nighttime with an intent to commit a felony.” Id. at 493 , 554 A.2d at 1248 ; accord Reed v. State, 316 Md. 521 , 523 n. 1, 560 A.2d 1104 , 1105 n. 1 (1989).

Over the years, however, the General Assembly enacted a hodgepodge of burglary-related statutes. See Warfield, 315 Md. at 493-94 , 554 A.2d at 1248 . In its first iteration as a statutory offense, burglary in the fourth degree was part of the General Assembly’s 1994 codification of what previously were common law burglary and the statutory burglary-related offenses. See 1994 Laws of Maryland, ch. 712, § 2.

Re-codified without substantive change in 2002 as CL § 6-205, burglary in the fourth degree embraces four varieties of proscribed behavior. That section reads: (a) Prohibited—Breaking and entering dwelling.—A person may not break and enter the dwelling of another. (b) Same—Breaking and entering storehouse.—A person may not break and enter the storehouse of another. (c) Same—Being in or on dwelling, storehouse, or envi rons.—A person, with the intent to commit theft, may not be in or on: (1) the dwelling or storehouse of another; or (2) a yard, garden, or other area belonging to the dwelling or storehouse of another.

(d) Same—Possession of burglar’s tool.—A person may not possess a burglar’s tool with the intent to use or allow the use of the burglar’s tool in the commission of a violation of this subtitle. (e) Penalty.—A person who violates this section is guilty of the misdemeanor of burglary in the fourth degree and on conviction is subject to imprisonment not exceeding 3 years. (f) Conviction of theft.—A person who is convicted of violating § 7-104 of this article may not also be convicted of violating subsection (c) of this section based on the act establishing the violation of § 7-104 of this article. We are concerned in the case at bar only with the first variety of fourth degree burglary—breaking and entering the ¹²⁵ dwelling of another—and, more particularly, with the meaning of the term “dwelling.” Plainly, “dwelling” is not defined in CL § 6-205.

Neither is it given a definition in CL § 6-201, the “Definitions” section of the “Burglary and Related Crimes” subtitle. Subsection (e) of CL § 6-201 merely provides: “Dwelling.—‘Dwelling’ retains its judicially determined meaning except to the extent that its meaning is expressly or impliedly changed in this subtitle.” We therefore must look to case law to ascertain the meaning of the term. Although we have not held in any case precisely what is meant by a “dwelling” insofar as the crime of burglary is concerned, the Court of Special Appeals has discussed the term in various opinions on the subject. We shall examine those cases later in this opinion.

Preliminarily, however, we address Petitioner’s suggestion during oral argument that the meaning of “dwelling,” for purposes of fourth degree burglary, is limited to the various definitions given that term in the Court of Special Appeals’ case law predating the 1994 codification of the burglary offenses. Even were we to assume that the Court of Special Appeals’ opinions predating the effective date of statutory burglary could establish, without comment or decision by the Court of Appeals, the universe of what constitutes “the judicially determined meaning” of the term “dwelling,” we are not precluded from further clarifying its meaning, in this opinion or others in the future. The Committee Note of the Committee to Revise Article 27, appended to the original version of the “Definitions” section, see Md.Code (1957, 1996 Repl.Vol.), Art. 27, § 28, makes that point clear. The Note begins: The meaning of the terms “break,” “enter,” and “dwelling” have been extensively developed at common law and in Maryland case law.

Therefore, the Committee believes that these terms should retain their judicially determined meanings. More specifically, the Committee believes that the terms “dwelling,” “break,” and “enter” should retain the meanings that have been ascribed to these words by the ¹²⁶ judges in cases interpreting the elements of the common law crime of burglary. The Note ends: The Committee does not intend that this bill limit or “freeze” further development of the meaning of the terms “break,” “enter,” “dwelling” and “storehouse” in case law. Rather, the Committee expects that the meaning of these terms will continue to be clarified as appropriate in future case law.

We set forth the above excerpts from the Committee Note fully cognizant that it is “not law.” See 1994 Laws of Maryland, ch. 712, § 4. Yet, we have not hesitated in the past to consider such notes to be strong evidence that, if a term “retains its judicially determined meaning,” it is subject to continued clarification in case law. See Robinson v. State, 353 Md. 683, 697-98 , 728 A.2d 698, 704-05 (1999) (looking to the Committee Notes of the Committee to Revise Article 27 concerning the 1996 codification of assault in two degrees, and recognizing that, although those notes are not law, they are “persuasive evidence of the legislative intent to abrogate common law assault and battery”); Boffen v. State, 372 Md. 724, 731-32 , 816 A.2d 88, 92 (2003) (looking to the Committee Notes of the Committee to Revise Article 27 for direction in deciding what constitutes an escape, in light of the statutory definition that “ ‘[ejscape’ retains its judicially determined meaning”). As we did in Robinson and Boffen , we view the Committee Note annotating CL § 6-201 as persuasive evidence that the General Assembly intended the meaning of “dwelling,” insofar as the burglary statutes are concerned, to be subject to ongoing clarification in the case law.

We now turn to that task. “[I]f a term such as ‘dwelling house’ is not otherwise defined by statute, the common law meaning is assumed to be intended.” Richmond v. State, 326 Md. 257 , 264 n. 4, 604 A.2d 483 , 486 n. 4 (1992). We have mentioned that, at common law, burglary was a felony that proscribed “the breaking and entering of the dwelling house of another in the nighttime with ¹²⁷ an intent to commit a felony.” 1 Warfield, 315 Md. at 493 , 554 A.2d at 1248 . Common law burglary and, by extension, Maryland’s statutes prohibiting burglary of the “dwelling of another,” are crimes against habitation. See W. Blackstone, 4 Commentaries * 169; Rollin M. Perkins & Ronald N. Boyce, Criminal Law, ch. 3 § 1 at 255-56 (3d ed.1982) (hereinafter Perkins); Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law, § 8.13(c) at 469 (1986) (hereinafter LaFave).

Because the law of burglary protects the dweller, it focuses not on ownership, but on occupancy. Perkins, supra, at 261; accord LaFave, supra, at 470 (stating that, because at common law it “was the right of habitation and not the ownership of property that was being protected, occupancy controlled the question of whether the dwelling was that of another”). To be a dwelling, the place must be of human habitation, LaFave, supra, at 469, that is, a “place to sleep in,” Perkins, supra, at 256. A structure does not become a dwelling until someone occupies it.

Id. at 258. Once a dwelling, however, the structure does not lose its character as a dwelling simply because it is left vacant for a time. See Perkins, supra, at 258-59; see also LaFave, supra, at 469 (stating that, “[i]f the place is one of human habitation, there is no requirement that a person be present therein at the time of the offense”). The length of the vacancy, moreover, does not, of itself, disturb the character of the place as a dwelling. “Certain it is that the dweller and his entire household may be away for months, without depriving the house of its character as his dwelling.” Perkins, supra, at 259.

The common law recognizes that “[tjhere may be more than one dwelling under the same roof and this applies not only to apartment houses and similar structures but also to buildings ¹²⁸ of similar types.” Id. at 257. “Each apartment in a tenement house is ‘the dwelling house of the particular occupant,’ but even a single room in a private house or a hotel may be the dwelling of the occupant if it is actually the place where such person lives.” Id. Moreover, “[i]f a house is habitually used as a place where persons sleep, it is properly to be regarded as a dwelling even if no one who lodges there has a sufficient interest therein to establish it as Ms dwelling.” Id. at 262-63 (emphasis in original). Therefore, “a hotel is a dwelling house even if all the inmates are transients, and the proprietor and his family and servants all sleep elsewhere.” 2 Id. at 263. No case of this Court provides a test for determining what is a dwelling, for purposes of Maryland burglary law.

But we have had occasion to comment on the common law meaning of the term, and we have recognized that separate apartments in a single structure are separate dwellings. In Richmond, 326 Md. at 265-66 , 604 A.2d at 487 , an arson case, we stated that the meaning of “dwelling house” was the same as its common law meaning for burglary purposes, and we held that, when the Petitioner set a fire in one apartment that led to the burning of two other apartments in the same building, he committed three acts of arson of a dwelling house. 3 And in Bane v. State, 327 Md. 305, 315 , 609 A.2d 313, 318 (1992), a case involving whether separate spaces in a building devoted to commercial use qualified as separate ¹²⁹ storehouses, we commented that, “[wjithout some means of identifying the offices of the businesses as separate the situation is not unlike that of a dwelling house: although several people live in the dwelling, occupying the separate bedrooms, it nevertheless remains a single unit ... for purposes of applying the proper unit of prosecution.” Although neither of these cases directly addresses the issue presented in the case at bar, both stand for the notion that a single building can contain more than one dwelling, if, as with the case of apartments, the spaces are separately identified as such. The Court of Special Appeals, unlike this Court, has had numerous occasions to grapple with whether a structure or separately identified space within a structure is a “dwelling.” In Jones v. State, 2 Md.App. 356, 361-62 , 234 A.2d 625, 628 (1967), the intermediate appellate court affirmed a conviction for storehouse breaking of a part of a building that was occupied by the Chesapeake Club, Inc., notwithstanding that another part of the building was used as an apartment. And, in Buckley v. State, 2 Md.App. 508, 511 , 235 A.2d 754, 756 (1967) (per curiam), the court held that a building, “originally designed as a dwelling,” was a warehouse for purposes of the statute proscribing breaking and entering a warehouse, because no person resided or was domiciled there, and the building was used only as a meeting and recreational facility.

Those cases were followed by Poff v. State, 4 Md.App. 186 , 241 A.2d 898 , cert. denied, 251 Md. 751 (1968). Poff involved a vacant apartment that the court described as having been “rented” only by the police “for the obvious purpose of setting a trap” for the subject of its sting operation. The court looked to the common law commentators and extracted from those authorities the following test for determining what constitutes a “dwelling house:” “The test as to whether or not a building is a ‘dwelling house’ is whether or not it is