State v. McNEARNEY
2011 UT App 4
Utah Ct. App.2011Background
- McNearney was charged with burglary of a dwelling after breaking into a never-occupied, newly constructed house built for sale.
- The house had never been inhabited; construction was finished about eight months prior and the home was on the market for about four months.
- At trial, the owner testified the house was functional with appliances except for a fridge, and it had been shown to potential buyers.
- McNearney moved for a directed verdict to reduce the charge to burglary of a building, arguing the structure did not qualify as a dwelling under the statute; the district court denied.
- The district court reasoned Cox defined dwellings by structure type but also stated dwellings could be based on habitability; the jury was not instructed on burglary of a building as a lesser offense.
- The jury convicted McNearney of a second-degree burglary; on appeal, the issue is whether the never-occupied house qualifies as a dwelling under Utah law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a never-occupied house meet the dwelling definition? | McNearney argues it does not meet the dwelling definition. | State argues Cox allows structure type or intended use to define a dwelling, and confusion persists. | Yes, it does not meet dwelling; reversed to reduce to building burglary. |
| Proper remedy when not a dwelling — should the charge be reduced to burglary of a building? | State contends the original charge should remain or the issue should go to the jury. | McNearney contends the district court should have directed a verdict to reduce to burglary of a building. | Not decided on appeal; remanded for entry of a burglary of a building conviction. |
Key Cases Cited
- State v. Cox, 826 P.2d 656 (Utah Ct.App. 1992) (dwelling defined by structure's use and overnight occupancy; cabin held as dwelling)
- State v. Cates, 2000 UT App 256U (Utah Ct.App. 2000) (camping trailer rented for deer hunt; overnight lodging considered for dwelling)
- State v. Garcia, 2010 UT App 196 (Utah Ct.App. 2010) (statutory interpretation of dwelling definition; reasoning on whether questions are questions of law)