State v. Davis

“Dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present. A defendant’s unlawful habitation in a building is insufficient to identify that building as a “dwelling.”

Defendant appealed a judgment of conviction for multiple crimes. Defendant assigned error only to the trial court’s denial of his motion for judgment of acquittal on one count. Defendant alleged that the trial court misapplied the law in finding that a small boat was considered a “dwelling” for purposes of first degree burglary. Specifically, Defendant argued that first degree burglary is only chargeable when the entered structure is also considered a “dwelling” and the boat at issue here failed to be a considered a “dwelling” and therefore the trial court misapplied the law by finding him guilty of first degree burglary. The only evidence presented regarding actual habitation of the boat was Defendant’s own unlawful habitation. The Court ultimately concluded that such evidence was insufficient to show that the boat was considered a “dwelling." Reversed.