Request By:
Hon. A. Jack May
Director, Division of Judicial Training
Department of Justice
Box 608, Eastern Kentucky University
Richmond, Kentucky 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; Miles H. Franklin, Assistant Attorney General
This is in reply to your request for interpretative assistance regarding the legislative revisions to the three degrees of burglary, KRS 511.020, .030 and .040. You specifically question the meaning of the inserted adjectives "inhabited" and "uninhabited" as used in KRS 511.030 and 511.040, and their effect on the definition of "dwelling" , as used in KRS 511.020.
Effective June 17, 1978 the three classifications of burglary read as follows:
KRS 511.020 Burglary in the first degree
(1) A person is guilty of burglary in the first degree when, with intent to commit a crime, he knowingly enters or remains unlawfully:
(a) In a dwelling;
(b) In a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:
1. Is armed with explosives or a deadly weapon; or
2. Causes physical injury to any person who is not a participant in the crime; or
3. Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.
(2) Burglary in the first degree is a Class B felony.
KRS 511.030 Burglary in the second degree
(1) A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in an inhabited building.
(2) Burglary in the second degree is a Class C felony.
KRS 511.040 Burglary in the third degree
(1) A person is guilty of burglary in the third degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in an uninhabited building.
(2) Burglary in the third degree is a Class D felony.
We agree with your observation that the addition of the words "inhabited" and "uninhabited" is a legislative attempt to more clearly relate the degree of the burglary offense to the likelihood of danger or injury to people. It was the impetus of possible hazard to life and the likelihood of a burglar coming into contact with people, that caused the legislature to restructure the burglary chapter. Because this trespassory offense is aggravated by the existence of supplementary criminal intent, we surmise three reasons behind the General Assembly's action: 1) To make all dwelling house burglaries, either at daytime or at night, of the first degree category; 2) To preserve all those crimes as first degree when aggravating factors (the possession of deadly weapons or explosives, infliction of physical injury to any non-participant present, or use or threatened use of a dangerous instrument against any person who is not a participant in the crime) transpire in the burglary of any building either in the daytime or night; 3) To make the offense a higher degree where people could be expected to be present whether they are there or not. With this background, we offer our version of the import of the legislative changes to the burglary statutes:
1. First Degree Burglary - KRS 511.020.
"Dwelling" means a building that is usually occupied by a person lodging therein, KRS 511.010(2) which definition was not affected. This would include a home, apartment, sleeping room or other shelter in which a person normally lives, whether or not a person was present at the time of entering and remaining therein.
2. Second Degree Burglary - KRS 511.030.
"Inhabited building" refers to a building wherein people are frequently or routinely known to occupy. Here the emphasis is on the likelihood of a burglar coming into contact with people even though, as example, the normal work day has concluded. In this situation it would not be unreasonable to expect that security or maintenance personnel would be functioning. Thus, it is not necessary that there be people continually present or that there be someone present at the time of the unlawful entry. The gist of the crime is that there is the possibility that someone will be present and thus the likelihood of personal injury is greatly increased, i.e. office building, restaurant, church, warehouse, store, tent, barn, camper trailer and other places where people are ordinarily found when not at their place of residence.
3. Third Degree Burglary - KRS 511.040.
"Uninhabited building" refers to structures wherein people are not normally expected to be present and thus the likelihood of injury to any person is greatly minimized or reduced, i.e. a warehouse, locked and strictly used for storage, abandoned structures and other secured buildings where the presence of people is infrequent.
These statutes draw a fine line between the meaning of dwelling, inhabited building and uninhabited building; but it is suggested that the distinctions are more comprehensible if attention is focused on the likelihood of the burglar coming into contact with people and the potential hazard to life as a result thereof.