MEMORANDUM

To: G.T. Davis
From: A.M. Beard
Date: 00/00/0000
Re: Ellen Ferguson Burglary Prosecution

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QUESTION PRESENTED

Under State Statute § 246.35 concerning burglary, is the prosecution for burglary supported (1) when an individual is found outside the building beside an open window known to have been left open by the owner; (2) when both sides have stipulated that no part of the person entered the building but something under the person's control entered the building; (3) when a building is primarily an office building but has one residential apartment that is inaccessable from the common space entry, and the apartment is used occasionally and was in use the night of the alleged burglary; (4) when it was five a.m. and dawn was breaking, and (5) when the only evidence of intent is circumstantial?

SHORT ANSWER

Probably not. It would be unlikely to get a conviction under such circumstances. (1) When an individual is found outside a building beside an open window known to have been left open by the owner, prosecution would have to convince the jury that the individual enlarged the opening. This point would be arguable. (2) When both sides have stipulated that no part of the person entered the building but something under the person's control entered the building, case law seems to indicate that would count the same as if the person himself had entered the building. However, standard defenses could be argued. (3) When a building is primarily an office building but has one residential apartment that is inaccessable from the common space entry, and the apartment is used occasionally and was in use the night of the alleged burglary, the prosecutor would have some difficulty proving the building to be a "dwelling house." (4) Five a.m. and the break of dawn proves neither day nor night. It would depend on the time of the year, the particular day, and the overall circumstances; proving "nighttime" could be problematic for the prosecution, and doubt is to fall in the favor of the defendant in a criminal case. (5) When the only evidence of intent is circumstantial, it is a question of fact left to the jury. Doubt that is introduced would be in the favor of the defendant. Because the prosecution would have difficulty proving at least some of the elements, the facts suggest that such an individual could probably be offered some hope.

FACTS

The District Attorney has charged Ms. Ellen Ferguson with burglary. She denies the charge. On Aug. 22, 2001, at about 5 am as dawn was breaking, police responded to a silent alarm from Anderson House, 920 South Beech St., Georgesville, Mason. When they arrived, they found the owner, Dr. M. David Anderson, and Ms. Ferguson on the front porch. The window looking into the foyer was open wide. Ms. Ferguson was holding a fishing pole. In the foyer, police found a small painting on the floor, seemingly having fallen from the wall. According to police, the back of the painting had several small tears consistent with the size of the fishhook on Ms. Ferguson's fishing pole. Police say there were scratches scattered on the wall where the painting had hung. The claim is that Ms. Ferguson used the fishing pole in an attempt to reach inside the building to steal the painting.

Dr. Anderson has said he found Ms. Ferguson leaning through the window, attempting to "snag" the wall hanging with the fishing pole. He does admit that he had left the window open three inches the previous night.

Ms. Ferguson claims that she saw the open window while walking to a nearby lake to go fishing. Her only fishing gear was the pole. She went up to the window to check why it might be open, and her fishing line dropped inside and became tangled. She admits that she probably extended the rod inside the window as she tried to untangle the line.

Testimony from a retired army colonel could corroborate Ms. Ferguson's claim. Mr. Dixon lives near Anderson House. From his house, he saw Ms. Ferguson on the Anderson House porch at about 4:45 a.m. He did not see her open the window, and he did not see her lean into the window. He saw the rod extend into the foyer, and he saw what looked like someone struggling with a fishing pole. He watched for about two minutes and saw Dr. Anderson come to the porch and begin arguing with Ms. Ferguson.

According to the police, Ms. Ferguson has a history of drug and alcohol abuse. She has a police record of petty theft and shoplifting. She had been in the building frequently as a patient of the psychiatrist Dr. Anderson. Police report that Ms. Ferguson's aunt told them Ms. Ferguson had said she liked the painting. The police believe Ms. Ferguson's fishing pole set off the silent alarm when the pole crossed an infrared beam. The police wonder why Ms. Ferguson was wearing dark clothing, which they deem inappropriate for fishing. Ms. Ferguson has said that this was her first time fishing, and she was not aware of dress rules for fishing.

Anderson House is a four-story building with offices on the first, second, and third floors. On the fourth floor is an apartment that Dr. Anderson maintains; he uses it once or twice a week. It is accessed via an elevator in Dr. Anderson's first-floor office suite. Each office has its own separately keyed entrance within the building. No office is accessed directly from the foyer without going through a locked, interior door.

Ms. Ferguson claims that Dr. Anderson is trying to retaliate because she refused sexual advances he made at a counseling session. She has no proof of the advances, and she says that nothing happened between them as a result of the advances that she claims happened.

There is a piece of information missing from the facts: Ms. Ferguson's age. If she has minority or infancy status, there may be a different application of the law.

DISCUSSION & ANALYSIS

Under Statute § 246.35, given this set of circumstances, there will be difficulty proving all of the elements of the crime. The Statute states, "If a person breaks and enters the dwelling house of another in the nighttime with intent to deprive another of property, he shall be guilty of burglary." There will be difficulty proving breaking. Ms. Ferguson has admitted that her fishing pole was inside, and case law would likely consider anything under her control as entering. The configuration of the building will allow for a convincing argument that the "dwelling house" itself was not entered. The definition of "nighttime" would be important in this case. Burglary is a crime of specific intent. If Ms. Ferguson's fishing pole accidently fell into the house, she had no intent. Below is a consideration of each element:

I. Breaking

When an individual is found outside the building beside an open window known to have been left open by the owner, under the statute, has the individual "broken" the seal of the window? Probably not. Dr. Anderson admits that he had left the window open three inches the previous night. Several hours had passed between the time when he left the window open and when Ms. Ferguson was found on the porch of Dr. Anderson's building. The District Attorney will likely claim that Ms. Ferguson opened the window wider, an act that would constitute "breaking" according to the holding in Paul v. Commonwealth, 424 Mason App. 712 (1992). In Paul, the Mason Court of Appeals held that increasing the opening of a sliding glass door constituted "breaking." Thus, it is likely that enlarging an opening of a slightly open window would be considered "breaking." However, Ms. Ferguson denies opening the window wider. Dr. Anderson himself does not say that he saw Ms. Ferguson open the window wider. Mr. Dixon, a witness in the two minutes before Dr. Anderson arrived, did not see Ms. Ferguson open the window wider. There is no witness and no physical evidence to prove Ms. Ferguson increased the opening of the window. In addition to someone earlier having opened the window more, a possible defense strategy would be to debate over inches to the point of getting the jury to wonder about the precise difference in four or five inches. If the prosecutor proved that Ms. Ferguson enlarged the opening of the window, he would prove breaking, but he would have difficulty proving beyond reasonable doubt that it was she who opened the window wider. Entering

When both sides have stipulated that no part of the person entered the building but something under the person's control entered the building, case law seems to indicate that would count the same as if the person himself had entered the building. In a case of first impression, Mason's Court of Appeals ruled that the intrusion of a defendant's arm and shoulder constituted entry. Danforth v. Commonwealth, 508 Mason App. 362 (1998). In battery, something under a person's control can be considered part of the person. It would be only a minor extension of Danforth for the court to move to counting something under a person's control as entry. Additionally, Dr. Anderson claims that Ms. Ferguson was leaning through the window. If the prosecutor could prove that Ms. Ferguson was leaning through the window, with part of her body on the inside, he would prove the element of entry per the Danforth ruling. Mr. Dixon would be able to say that he did not see Ms. Ferguson put any part of her body inside, but Mr. Dixon can testify only for the two minutes that he saw.Dwelling house of another

When a building is primarily an office building but has one residential apartment that is inaccessable from the common space entry, and the apartment is used occasionally and was in use the night of the alleged burglary, will the building be considered a "dwelling house"? Unless the claim can be countered from a different angle, it is likely that such a building would be considered a "dwelling house." According to Wills v. Commonwealth, 23 Mason App. 1 (1989), quoting Code § 246.5(a), "No outhouse, not adjoining a dwelling house, nor under the same roof, although within the curtilage thereof, shall be deemed a part of such dwelling house, within the meaning of this chapter, unless some person usually lodge therein at night." While Dr. Anderson had a residence elsewhere, the fourth floor of the building was an apartment that he used it regularly, one or two nights a week. According to Wills, "Most [states] conclude that the house remains a dwelling house so long as the occupant intends to return." Dr. Anderson intended to return to that apartment on a regular basis. Wills also held that the term "dwelling house" in Code § 246.35 means a place that human beings regularly use for sleeping. Dr. Anderson used the apartment for nighttime sleeping on a regular basis.

However, we could argue that the foyer was completely separate from the apartment. Access to the apartment was through Dr. Anderson's office suite. That office suite, like all the other office suites in the building, had a separate interior entrance. Thus, even being inside the foyer would not mean that someone could access the apartment. The fact that Dr. Anderson intentionally left the window open would suggest that he did not feel "accessible" as he slept. He realized that entry to the foyer did not mean entry into the area of the building that could access his apartment.

II. Nighttime

When it is 5 a.m. and dawn is breaking, under the statute, is it "nighttime"? The District Attorney would have difficulty convincing all members of a jury that it is nighttime at 5 a.m. while dawn is breaking. Most people regard "nighttime" as a time when it is dark and a time when people are sleeping. The doctor was himself up and ready to go at that time of the morning. Mr. Dixon was up and ready to go. If dawn was breaking, it was not dark; thus, it was not nighttime. If people who sleep at night were already awake and beginning their daily activities, it was not nighttime.

II. With Intent To Deprive Another of Property

When the only evidence of intent is circumstantial, can intent be inferred from circumstances? Yes, intent can be inferred from circumstances. According to Mathews v.Commonwealth, 323 Mason 572 (1984), "When an unlawful entry is made into the dwelling of another, the presumption is that the entry is made for an unlawful purpose. ... The specific purpose, meaning specific intent, with which such an entry is made may be inferred from the surrounding facts and circumstances."

It would be a jury question whether Ms. Ferguson had intent. The circumstances against her are (1) her history of petty theft and shoplifting; (2) her aunt's statement that Ms. Ferguson said she was intrigued by the painting; (3) her having been found holding a fishing pole extended into Anderson House, and the wall hanging on the floor. There are also circumstances that could argue against intent: (1) While police wonder why Ms. Ferguson was wearing dark clothes, fishermen could be found to say that they've worn clothes of all colors while fishing. It would be helpful if we could find a witness who would be able to corroborate Ms. Ferguson's story of going fishing at the lake that morning. (2) Although his time as a witness was for only two minutes, Mr. Dixon's description of what he saw matches with Ms. Ferguson's denial of intent.

Court room introduction of Ms. Ferguson's existing police record would be avoided if she were kept off the stand. The jury could go either way in deciding whether there was intent.

CONCLUSION

We likely can offer Ms. Ferguson hope of avoiding a conviction for burglary. The facts appear not to strongly support a burglary prosecution. Of the five elements of the statute, Prosecution would have some difficulty proving breaking, nighttime, and intent, and we would be able to argue that the foyer had no access to the actual "dwelling house" portion of the building. There could be a credible defense put on for Ms. Ferguson.