Lead Opinion
[¶ 1.] Thomas Burdick was charged with twenty counts of third degree burglary and twenty counts of petty theft. After a preliminary hearing, the circuit court dismissed all of the burglary counts. The state appeals from the circuit court’s order. We reverse and remand.
FACTS
[¶ 2.] The defendant, Thomas Burdick (Burdick), was employed by Land O’ Lakes as a milk truck driver and delivery man. Burdick’s delivery route included the City of Plankinton,- South Dakota. During a three-year period, Burdick delivered milk to “Ron’s Market (the market),” a grocery store located in Plankinton.
[¶ 3.] The market conducts its retail business in the front of the building. Customers routinely have access to this portion of the building. The back of the building is used as a storage area. The market stores its grocery items on pallets, shelves, and in bulk coolers in this portion of the building. During non-business hours, the storage portion of the building is separated from the retail portion by a metal door. The market’s owners secure the door from the retail portion of the market, using a metal bar. Outside access to the storage portion of the building is gained through a garage door.
[¶ 4.] The market’s owners gave Bur-dick a garage door opener to allow him to have access to the storage portion of the building during non-business hours. Bur-dick made deliveries to the market during the years 2002, 2003, and 2004. On at least twenty occasions, Burdick would make the milk delivery, and then take one or more cases of soda pop -without the owner’s permission. The value of the soda pop never exceeded one hundred dollars.
[¶ 5.] The state charged Burdick with twenty counts of petty theft and twenty counts of third degree burglary. Burdick made a motion to dismiss the twenty burglary charges. After the preliminary hearing, the circuit court issued a written decision. It ruled that this Court’s prior case law requires unauthorized or unlawful presence to sustain a burglary charge. Because the state stipulated to the fact that Burdick had permission to enter the building, the circuit court dismissed all of the burglary counts.
Standard of Review
[¶ 6¡] This case requires us to engage in statutory interpretation. Statutory interpretation is a question of law, reviewed de novo. MGA Insurance Co., Inc. v. Goodsell,
Decision
[¶ 7.] In 1976, the South Dakota Legislature repealed the statute that defined third degree burglary and replaced it with SDCL 22-32-8, which provided:
Any person who enters or remains in an unoccupied structure, with intent to commit any crime therein, is guilty of third degree burglary. Third degree burglary is a Class 4 felony.
State v. Blair,
[¶ 8.] In Blair, this Court examined whether SDCL 22-32-8 “require[d] some form of unauthorized entry by a person entering an unoccupied structure with the intent to commit a crime.”
[¶ 9.] In State v. Shult, this Court upheld a second degree burglary conviction where the defendant entered a convenience store during regular business hours and attempted to steal a frozen pizza.
[¶ 10.] Two years after Shult, this Court decided In the Matter of T.J.E.,
[¶ 11.] The Legislature amended SDCL 22-32-8 in response to the T.J.E. decision. SDCL 22-32-8 now provides:
Any person who enters an unoccupied structure, with the intent to commit any crime other than the act of shoplifting or retail theft as described in chapter 22-SOA constituting a misdemeanor, or remains in an unoccupied structure after forming the intent to commit any crime other than shoplifting as described in chapter 22-SOA constituting a misdemeanor, is guilty of third degree burglary. Third degree burglary is a Class 4 felony.
(emphasis added). The Legislature made an exception to the burglary statute for shoplifting or retail theft that amounted to a misdemeanor. It did not require an unlawful presence or presence without authority as we held in T.J.E. Nor did it eliminate the possibility that an individual could be guilty of burglary when forming intent to commit any crime and “remaining” in the structure. In short, the amendment to SDCL 22-32-8 created an exception for shoplifters, but rejected this Court’s reasoning in T.J.E.
[¶ 12.] Despite the plain text of the statute, this Court continued to adhere to the rule set forth in T.J.E. In State v. Derby, this Court noted that “unlawful or unauthorized entry into a structure [is] an element of third-degree burglary.”
[¶ 13.] In State v. Oster, the defendant was appealing his conviction of second degree burglary.
[¶ 14.] On appeal, Oster argued that his conviction should be overturned because he had been invited into the home and was therefore on the premises lawfully. Id. at 311. This Court agreed and reversed the conviction. The Court acknowledged that the plain text of SDCL 22-32-8 only provided an exception for shoplifting or retail theft. However, the Court continued to adhere to the rule in T.J.E. because “the statute still fail[ed] to remedy the problem that the commission of any crime indoors, no matter how severe, is subject to a felony burglary charge.” Id. at 311. The dissent noted that continued application of the rule in T.J.E. was “in direct conflict with the obvious intent of the legislature and erroneous.” Id. at 313 (Sabers, J., dissenting).
[¶ 15.] In State v. DeNoyer, this Court unanimously sustained the second degree burglary conviction of a defendant who entered a woman’s home and committed the crime of rape.
Oster to reach the result in the case.
[¶ 16.] It is through these precedents that we analyze the present case. In doing so, we start with the plain language of SDCL 22-32-8. That language clearly indicates the Legislature’s intent to criminalize the entering or remaining in an unoccupied structure with the intent to commit any crime. The only exception that appears in the statute is for shoplifting or retail theft. Despite the rationales in T.J.E., Derby, and Oster, the Legislature did not make an exception for people who had entered a structure lawfully, or with consent from the owner. Had the Legislature intended to codify the exception set forth in those cases, it easily could have done so. Instead, the statute has remained the same during the last sixteen years.
[¶ 17.] Those Justices that have supported a requirement of unlawful or unauthorized entry have been primarily concerned with the broad reach of conduct the statute encompasses. See Blair,
[¶ 18.] Burdick puts forth many of the same policy arguments as the dissenters in Shult and Blair. However, it is the province of the Legislature to define what conduct is criminal and provide appropriate punishment. The separation of powers would be meaningless if the judiciary were able to create exceptions to a criminal law based upon its notion of fairness. See United States v. Jones,
The purpose of the legislative branch is to enact the laws. The purpose of the judicial branch is to interpret and enforce the laws. It is important to refresh our memories occasionally, lest we forget.
[¶ 19.] Burdick points out that the Legislature has amended SDCL 22-32-8 effective July 1, 2006, and trill require a showing that the defendant was not privileged to enter or remain in the structure. Bur-dick is correct, but that amendment does not take effect until July 1, 2006. We cannot apply an amendment prior to its effective date. The decision of the circuit court is reversed, and this matter is remanded for trial.
[¶ 20.] Reversed and remanded.
Notes
. The state and the defendant stipulated to these facts for purposes of the preliminary hearing.
. Justice Miller and Justice Amundson also found it unnecessary to overrule Oster. However, Justice Miller's concurrence did recognize that "the plain language of the statute does not mandate criminal intent be formed only at the time of entry.” Id. at 734 (Miller, J., concurring).
. The plain language of the statute does create an almost infinite amount of situations
Dissenting Opinion
(dissenting).
[¶ 23.] I dissent. The majority’s interpretation of the statute casts the net of the burglary statute so expansively that it ensnares any offense committed indoors, no matter how petty. Thus, dropping a candy wrapper on the floor, illegally downloading music from the internet, taking a towel from a motel, and walking out of a bar with a glass all become felonies punishable by ten to twenty-five years in the penitentiary. Common sense should tell us this was not the intent of the legislature.
[¶ 24.] At common law, burglary was defined as “the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.” State v. Pellegrino,
*11 “[T]he offense of burglary at common law was considered one aimed at the security of the habitation rather than against property. That is to say, it was the circumstance of midnight terror aimed toward a man or his family who were in rightful repose in the sanctuary of the home, that was punished, and not the fact that the intended felony was successful. Such attempted immunity extended to a man’s dwelling or mansion house has been said to be attributable to the early common-law principle that a man’s home is a castle.”
State v. Celli
[¶ 25.] As of July 1, 2006, however, burglary statutes will not apply to a person who has privilege to enter a structure. The statute which defines third-degree burglary, in its entirety, will provide:
Any person who enters or remains in an unoccupied structure, other than a motor vehicle, with intent to commit any crime, unless the premises are, at the time, open to the public or the person is licensed or privileged to enter or remain, is guilty of third degree burglary. Third degree burglary is a Class 4 felony-
SDCL 22-32-8 (effective July 1, 2006). The change to SDCL 22-32-8 reflects a legislative determination that burglary has been too broadly defined. It effectively repeals our cases that find consent irrelevant. This change not only prevents shoplifters from being charged with felony burglary, but it also prevents the application of burglary statutes to the commission of any crime, no matter how severe, indoors.
[¶ 26.] This change, however, comes too late for Burdick. Even though Bur-dick was privileged to enter the market, a broad interpretation of the current statute punishes his conduct — conduct which would not be punishable under the amended version of SDCL 22-32-8 which takes effect July 1, 2006. Also unfortunate for Burdick is the fact that he took the soda from the storage area of the market, for if he would have taken merchandise displayed or offered for sale, his conduct would have fallen within the shoplifting or retail theft exception to the current version of SDCL 22-32-8. See SDCL 22-30A-19.1 (defining liability of a shoplifter to a merchant as the amount owed by “[a]ny adult ... who takes possession of any goods, wares, or merchandise displayed or offered for sale by the store or other mercantile establishment without the consent of the owner or seller and with the intention of converting the goods to the person’s own use without having paid the purchase price”). We continually profess our canon of construction which requires us to avoid interpreting a statute so as to achieve an absurd result. See, e.g., State v. Brekke,