State v. Shelby, 499 P.3d 671

Defendant convicted of burglary of a dwelling, larceny over $2,500, and criminal damage over $1,000 after tools, a generator, and a TV were stolen from a partially constructed house; appeal contests the dwelling element of burglary.
Victim was working out of state (oilfield) when UPS driver noticed doors open and police discovered forced entry (pried window, broken locks, missing window screens); surveillance images led to Defendant’s arrest.
The house had a finished exterior (roof, walls, doors, windows, address, fence, sheds, camper) but interior construction was incomplete and it lacked electricity and running water.
Victim kept a cot, grill, liquor, tools, a camper with a TV, and a generator on the property; he testified he slept in a portion of the house he had made "somewhat livable," received deliveries there, and had a friend check and secure the property while he was away.
Defendant argued the structure was not a "dwelling" under UJI 14-1631 because it was under construction, lacked utilities, and Victim used it only intermittently; the Court of Appeals affirmed the burglary conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the structure qualified as a "dwelling house" for burglary	State: structure was actually used as living quarters; Victim exercised possessory/privacy rights and treated it as his residence	Shelby: house under construction, no utilities, and occasional occupancy mean it is not a "dwelling"	Affirmed: evidence supported dwelling classification based on enclosure, actual use, purpose, and customary practice
Whether occupant's absence at time of entry negates dwelling protection	State: absence does not negate dwelling status; burglary protects security of habitation whether occupant present or not	Shelby: Victim was away working, so structure was not occupied as a residence at the time	Held: occupant absence is irrelevant; intermittent absence does not defeat dwelling status
Whether intermittent or part-time use satisfies "customarily used" requirement	State: Victim’s pattern (sleeping there, deliveries, friend checking, adaptations) showed a customary practice of habitation	Shelby: "Sometimes" living there is not "customary" — use was occasional	Held: customary use does not require continuous occupancy; intermittent, established practice suffices

State v. Muqqddin, 285 P.3d 622 (2012) (explains burglary’s focus on security of habitation and the privacy/possessory interests protected)
State v. Samora, 387 P.3d 230 (2016) (sets standard for reviewing sufficiency of evidence in criminal cases)
State v. Rojo, 971 P.2d 829 (1999) (instructs courts to view evidence in the light most favorable to the verdict)
State v. Ervin, 630 P.2d 765 (1981) (discusses temporary absence and habitability factors in dwelling analysis)
State v. Mestas, 370 P.3d 805 (2016) (examines physical characteristics to determine privacy and enclosure under burglary law)
State v. Hudson, 430 P.2d 386 (1967) (references adaptations for human occupancy in assessing dwelling character)