Julian v. State

767 S.W.2d 300, 298 Ark. 302, 1989 Ark. LEXIS 140, 1989 WL 28923

• Court: Supreme Court of Arkansas
• Decided: March 27, 1989
• Docket: 89-11
• Status: Published

Opinions

David Newbern, Justice.

This is an appeal of a burglary conviction. Paul Edward Julian, the appellant, contends he should not have been convicted of burglary because the building he was charged with entering for the purpose of committing theft was not an “occupiable structure” as defined by Ark. Code Ann. § 5-39-201(a) (1987). We find that the structure, which was a twelve by fifty-five foot “trailer” or mobile home was an occupiable structure, and thus the conviction is affirmed.

Julian and two others were found by the owner of the trailer, Johnny Davis, in the process of removing items such as door knobs, brass water faucets, and bathroom faucets from the trailer. The trailer was one of a number of trailers located together. The other trailers were rented by Davis to tenants as dwellings. The one in which Davis found Julian was not and had not previously been rented but was used as place for storage of items used by Davis in his business, such as aluminum window frames and door knobs. Davis testified that he had never set the trailer up for occupancy by attaching utilities, although it contained a bathroom, kitchen, and bedroom.

Section 5-39-201 (a) provides: “A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-101 (1987) gives three definitions of “occupiable structure” as a vehicle, building, or other structure:

(A) Where any person lives or carries on a business or other calling; or

(B) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or

(C) Which is customarily used for overnight accommodation of persons whether or not a person is actually present. Each unit of an occupiable structure divided into separately occupied units is itself an occupiable structure.

The appellant cites no cases or other authority helpful in interpreting the statute. His sole argument is that the state proved only that Julian was guilty of the lesser included offense of breaking or entering, as that offense is defined in Ark. Code Ann. § 5-9-202 (1987), and thus should have been given a lesser sentence. His contention is that the trailer was a building which was not occupiable. We disagree and hold the trailer fell within the definition found in § 5-39-101 (C).

Among the definitions of the word “customary” in Webster’s Third International Dictionary (Unabridged, 1968) is the following: “commonly practiced, used or observed.” We have no doubt that it is a common practice for persons to be in mobile homes overnight.

In Barksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977), it was contended that breaking into the Baptist Student Union at the University of Arkansas at Pine Bluff at night when no one was present was not burglary because it was not an occupiable structure at the time the entry occurred. We held the structure was occupiable and wrote:

Under the statutory definition of ‘occupiable structure,’ whether anyone is physically occupying the structure is irrelevant. The determinative factor is the nature of the premise, that is, not whether it was occupied at the time of the crime, but rather whether it was occupiable [emphasis in original, 262 Ark. at 274, 555 S.W.2d at 950].

Just as the definition of “occupiable” does not depend on the presence of a person in a building, it does not depend on whether it is being used for some other purpose as long as “the nature of the premise” is that it is “occupiable.” A mobile home or trailer of the sort described in the testimony here is a premise the nature of which is occupiable.

The obvious reason for the distinction between our burglary and breaking and entering statutes is the intent of the general assembly to punish burglary more severely because it involves entering a place where people, as opposed to mere property, are likely to be. Barksdale v. State, supra. The appearance of the trailer in question was apparently distinguishable from that of the other trailers rented as dwellings only by the fact that it was numbered “8.” The building was thus one in which a person planning to enter could have anticipated finding a person or persons, absent any evidence that the trailer was uninhabitable, and thus entering it could have endangered human life or health. It was the sort of building to which the burglary statute was intended to apply.

Affirmed.

Glaze, J., concurs. Purtle, J., dissents.