United States v. Thomas Melton, Jr.

Appellant was tried before a jury and convicted of first degree burglary. At trial, the following story emerged. At about 10 p. m. on January 29, 1971, Mrs. Vessels was asleep on the second floor of her home, when she was awakened by a loud noise from downstairs. She went to the foot of the stairs where she could clearly see that the noise had been caused by someone knocking over several pieces of plywood, which had been stacked against a door opening inward from an unheated sunroom. When she went outside, she discovered that a screen door to the kitchen had been cut but the door itself had not been opened and that a window leading into the sun-room had been opened and left ajar.

After surveying the outside of the house, Mrs. Vessels went to her next door neighbor’s home and called the police. A patrol car responded in about five minutes. After Mrs. Vessels told the policemen what had happened, they went to her house to investigate. Coming to the partially opened sunroom door, they immediately saw appellant lying on the floor. They arrested and searched him without incident; no weapons, burglary tools or stolen goods were found. Nothing of value in the house had been moved so as to indicate an attempt to steal.

I.

Appellant was charged with first degree burglary—the unlawful breaking and entering into the dwelling of another while a person was present therein with the intent to commit a criminal offense 1—in this case, larceny. At the close of the government’s case, defense counsel moved for a directed verdict of acquittal for a failure of proof on the question of ultimate criminal intent. The trial judge agreed that there had been no evidence introduced demonstrating the intent to commit a crime after entry.

I find that he entered and that there was an unlawful entry, no question about it, but I don’t find any evidence here of intent to steal; unlawful entry just isn’t [inconsistent] with intending to enter for some other purpose.

Nonetheless, after reviewing points and authorities for both sides, the trial judge concluded that mere unlawful entry into another’s house supports , an inference that the interloper was there to steal. Accordingly, he denied the defense motion for acquittal and submitted the charge of burglary to the jury. On this appeal, we concern ourselves only with the discrete legal issue of whether that ruling was premised on an erroneous interpretation of law.

II.

The trial judge erred in submitting a burglary charge to the jury where he found a complete absence of any evidence of an intent to commit a crime after the unlawful entry. By doing so, the trial judge invited the jury “to conjecture merely, or to conclude upon pure speculation or from passion, prejudice or sympathy,” rather than any factual predicate, why appellant entered the dwelling.2

In addition, the trial court’s ruling conflicts with the statutory scheme of property offenses. Unlawful entry carries a maximum penalty of six months’ imprisonment.3 First degree burglary carries a penalty of not less than five or more than thirty years.4

The element that distinguishes burglary from unlawful entry is the intent to commit a crime once unlawful entry has been accomplished.5 To allow proof of unlawful entry, ipso facto, to support a burglary charge is, in effect, to increase sixty-fold the statutory penalty for unlawful entry.

III.

The trial judge relied on three cases to sustain his ruling on the motion for acquittal—Cady v. United States, 54 App.D.C. 10, 293 F. 829 (1923); Washington v. United States, 105 U.S.App.D.C. 58, 263 F.2d 742 (1958), cert. denied, 359 U.S. 1002, 79 S.Ct. 1142, 3 L.Ed.2d *481032 (1959); and United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971). These decisions do not control the case before us. In Washington, there was evidence that, after gaining entry, the defendant attacked and assaulted two of the occupants, as an indication of his ultimate criminal intent. In Cady, there was evidence of flight. More importantly, Cady and Washington must be construed in light of our subsequent holding in United States v. Fox, 140 U.S.App.D.C. 129, 433 F.2d 1235 (1970). There we affirmed a burglary conviction of a defendant who was apprehended carrying cigarettes out of a closed supermarket, while it was being looted. The court pointedly observed:

Standing alone, unauthorized presence in another’s premises hardly supports an inference of entry with a criminal purpose, but when aided by other circumstances it might very well. 433 F.2d at 1237.

More recently the court referred to this issue in dicta in Thomas, which held that where the intent for the ultimate crime was indefinite, an indictment for burglary might allege an intent to steal. Since, however, the indictment returned against Thomas did not specify an intent to commit any criminal offense his conviction was reversed. The court noted, in language clearly unnecessary to its holding, that the circumstances of a defendant’s entry, if unexplained, “may furnish the basis for an inference that the entry was made with the intent to commit larceny.” 444 F.2d at 924. The court’s rationale was articulated as follows:

The usual object [of such an entry] is theft, and this is the inference ordinarily to be drawn, in the absence of explanation, from breaking and entering at night, accompanied by flight upon discovery, even though nothing has been taken, 444 F.2d at 924 quoting State v. Woodruff, 208 Iowa 236, 225 N.W. 254, 255 (1929). (emphasis supplied).

In each of the cases on which the trial judge relied in making his ruling, some circumstantial evidence of the requisite intent to commit a crime on the premises was either shown or noted—flight upon discovery, carrying or trying to conceal stolen goods, an assault upon a resident. Here, as the trial judge noted, there does not appear to be any circumstantial evidence of an ulterior criminal purpose other than the unlawful entry itself. Appellant did not attack Mrs. Vessels after she had discovered his presence. Despite a readily accessible means of escape provided by the nearby opened window, appellant did not escape during the several minutes between his discovery and his apprehension. Appellant had no stolen goods, weapons, or burglary tools with him when apprehended. He could not have been concealed, since the arresting officers saw him immediately upon peering through the door intd the sunroom, nor did he resist arrest.

Nor should the fact that the unlawful entry occurred in the nighttime support the inference of intent to steal. An element of common law burglary was that it occurred at night;6 nighttime entry was seen as more likely to pose a threat to occupants. Congress abolished the “nighttime” requirement and focused instead on the specific consideration—the danger to occupants of a home. First degree burglary requires entrance into a dwelling while someone is present; second degree burglary, to which lesser penalties attach, requires neither that the building be a dwelling nor that it be occupied.7 The “common law” nighttime element, clearly abandoned by Congress, should not be resurrected by judicial fiat to make an act proscribed by Congress as a breaking and entering into a first degree burglary. It is true that some courts would infer an intent to steal from an unexplained nighttime intrusion. Some states provide by statute for a presumption of burglarious intent to arise from such unexplained conduct.8 Congress has not done so. Rather, it enacted a comprehensive scheme of property offenses which should not be confounded by us.

IV.

Appellant’s burglary conviction is therefore reversed. Although the trier of fact necessarily found the facts required for conviction of the lesser included offense of unlawful entry, it would be inappropriate to remand this case to allow the trial judge to enter a conviction on that charge. The cases in which we adopted that procedure have usually involved a wrongful refusal to instruct on the lesser included offense,9 while here defense counsel specifically eschewed such an instruction. The government has ample opportunity to have appellant’s guilt of unlawful entry decided by the jury. It chose not to do so and to seek a conviction only on the greater offense. It is bound by that choice. The judgment below is

Reversed.