124 A.3d 683
N.H.2015Background
- Gilley was convicted of class A felony burglary under RSA 635:1, II (dwelling of another at night).
- Pre-trial motion to dismiss argued the house was not the dwelling of another because the resident moved out and listed it for sale.
- Superior Court denied the motion; the case proceeded to a bench trial on stipulated facts.
- On June 25, 2013, Gilley entered a house intending to steal copper piping; James T. Alexander had moved out, leaving the house vacant and for sale.
- House was vacant and not sold or occupied until Sept. 17, 2013; the owner previously lived there and later sold it.
- The issue on appeal was whether a vacant house listed for sale remains the “dwelling of another” for purposes of the burglary statute; the issue is analyzed de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether vacancy and sale listing ends the dwelling status | State argues intent to return is not required; dwelling remains regardless of vacancy. | Gilley argues dwelling status ends when occupant leaves and lists for sale. | Yes; house remains a dwelling; affirmed. |
Key Cases Cited
- State v. Gibson, 160 N.H. 445 (2010) (statutory interpretation of criminal code terms in RSA 635:1)
- State v. Timbury, 114 N.H. 763 (1974) (dwelling remains a dwelling despite vacancy; no intent-to-return requirement stated)
- Hobby v. State, 83 A.3d 794 (Md. 2014) (vacancy and sale listing do not remove dwelling status (relevant to deterrence))
- State v. Scarberry, 418 S.E.2d 361 (W. Va. 1992) (structure remains a dwelling while vacant if originally a dwelling)