State v. McNearney, 246 P.3d 532

McNearney appeals after a second degree felony burglary conviction.
The burglarized building was never occupied and was built by the owner to sell.
At the time, the house was finished for eight months, functional, and on the market for about four months.
The district court denied a directed verdict and declined a jury instruction reducing to burglary of a building, relying on Cox.
The jury convicted McNearney of second degree burglary; he challenges the dwelling determination on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by denying directed verdict on dwelling issue	McNearney contends the house isn’t a dwelling under 76-6-201(2).	McNearney argues Cox requires occupancy or overnight use to define dwelling.	Yes; court agrees district court erred and the house isn’t a dwelling.
Whether there was error for not instructing on burglary of a building as lesser offense	McNearney seeks lesser included offense instruction if not a dwelling.	State would not have asked for such instruction if dwelling status were clear.	Not reached; conviction vacated on dwelling issue, remand for burglary of a building.

State v. Cox, 826 P.2d 656 (Utah Ct.App.1992) (dwelling definition depends on actual use and overnight lodging of the structure)