The Volokh Conspiracy
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When Is It Burglary to Break Into a Home You Own, but Aren't Living in?
From State v. Crull, decided earlier this month by the Washington Court of Appeals (Judge Anne Cruser, joined by Judge Bernard Veljacic):
[Jacee] Crull and Buddy Brock were romantic partners beginning in 1999. In 2007, Crull and Brock purchased a home together where they lived as a family and raised Crull's children. Both Crull and Brock signed the mortgage and loan documents and were listed on the homeowners' insurance policy. During their relationship, Crull and Brock combined their income and jointly paid for bills and other necessities, including their mortgage. After moving into their home, Crull and Brock adopted two dogs.
Crull and Brock's relationship ended in February 2018. Crull had been experiencing a mental health crisis at that time. While Brock was at work, after taking some of her personal belongings out of the house, Crull sought treatment for her mental health condition in a hospital. Crull was hospitalized for six to eight hours, but she did not return to the home she shared with Brock until several days later. According to Crull, when she returned to the home, she discovered that the locks to the residence had been changed and she broke a window to gain access to the house.
In the months that followed, Crull experienced homelessness, residing in her truck with as many of her possession as she could fit in the vehicle. Meanwhile, Brock continued to live in the house. Crull continued handling the mortgage payments on the property for some time after she initially left the house, but she eventually stopped making that payment. Crull continued to make payments on the insurance for the home.
In April 2018, Crull obtained a temporary order of protection for a vulnerable adult and a domestic violence temporary protection order that prohibited Brock from entering the home. Crull noted in the temporary order of protection for a vulnerable adult that she required financial assistance to no longer experience homelessness and that her name was on the mortgage for the residence. She further explained that she hoped to obtain her "medical equipment, medications, plants, records [and] other important documents."
Brock left the house immediately after learning about the existence of the temporary orders. Crull later returned to the house, stayed for several hours to collect some of her belongings, and left. At the hearing on the temporary orders, the trial court declined to finalize the orders, finding that Crull was not a vulnerable adult and that she did not allege a specific instance of domestic violence.
Brock returned to the residence after the temporary orders expired. Sometime later, Brock discovered several items in the home that he thought Crull would like to have, so he packed them in a box and dropped them off at a friend's house. Crull and Brock did not contact one another after Crull moved out, and they did not make any verbal agreement regarding possession of the house. Crull and Brock likewise did not resolve possession over their real and personal property through any court proceeding. And aside from temporary orders, neither party was subject to an order that prohibited contact or restrained entry to the residence.
In August 2018, Crull drove with three friends from Jefferson County, where she had been residing in her truck, to her house. She tried to open the front door when she arrived, but the door was locked. One of the people who accompanied Crull jumped over the gate and went around the back of the house. That person entered the house through a sliding glass door that Brock kept open to allow the dogs to go outside while he worked. Crull, as well as the two other individuals who accompanied her, entered through the front door. Several items were removed from the home at that time. A neighbor's security camera captured the incident.
The State charged Crull with residential burglary and third degree theft….
Because Crull had a possessory interest in the property she was convicted of burglarizing, determining whether she retained a license or privilege to occupy the residence compels a more nuanced inquiry than simply resolving whether she lived in the home during the incident….
[T]he State argues that Crull relinquished her privilege to enter the residence, despite her ownership interest in the property, because the evidence showed that Crull did not live in the home during the incident…. [But] the residence at issue was not used as a rental property, there was no tenant occupying the residence prior to or during the burglary incident, and no evidence was presented that could establish a legal relationship between Crull and Brock analogous to that of a landlord and a tenant. Instead, the evidence reflects that Crull and Brock purchased the property together and lived in that home as their primary residence for approximately 11 years.
Nevertheless, the State contends that upon moving out of the home, Crull demonstrated her intent to voluntarily relinquish her possession of the residence. The State points to evidence that Crull obtained temporary restraining orders excluding Brock from the residence so that she could gather her remaining belongings as establishing Crull's intent to move away permanently. Indeed, Crull testified that after the temporary orders were filed, she remained in the home for only several hours, whereas the orders were in effect for two weeks, giving rise to a reasonable inference that Crull did not intend to continue living in the home.
Although the State's evidence shows that Crull did not intend to continue to reside in the home, we disagree that this fact resolves whether Crull relinquished her privilege to lawfully enter a home that she owned. Instead, the evidence reflects that occupancy of the residence was uncertain and in a stage of transition in the period after Crull initially left the home and leading up to the incident.
The evidence presented before the trial court did not show that Crull voluntarily relinquished her right to enter the home because the record reflects that the status of the residence after Crull and Brock ended their relationship was dubious. For example, following her mental health crisis, Crull returned to her home to find that Brock had changed the locks. Brock did not inform Crull that he changed the locks, nor did he attempt to contact Crull to provide her with a new set of keys to the home that they shared for over a decade. Instead, Brock assumed that upon discovering that he changed the locks, Crull would contact him so that he could tell her "where the spare key was located outside the house so she could get in the house."
Crull slept in her truck from that point forward and did not establish a permanent residence until several months after the incident in question. Although she took some of her belongings, Crull left other personal items in the residence, including the dogs that she adopted with Brock. Crull also continued to pay for insurance on the property while living in her truck. Most significantly, Crull and Brock did not contact one another after Crull left the house, and they never reached an agreement regarding who among them was to continue living in the home. Nor did they reach any resolution of the ownership status over the home in a civil proceeding. Taken together, the State did not set forth sufficient evidence to support the unlawful entry element by way of Crull's voluntary relinquishment of her right to enter her own home….
Brock could not unilaterally revoke Crull's privilege to lawfully enter her own home by forcing her out, removing her belongings, or changing the locks….
The statutory definition of unlawful entry in RCW 9A.52.010(2) describes that element in terms of a right to enter, using language such as "privilege," "license," or "invit[ation]," to lawfully enter a premises. Notably, the statute does not define unlawful entry based on present occupation and possession, nor does the statute otherwise incorporate those terms. Contrary to the State's suggestion, under the facts here, Crull's ownership is relevant to determining whether she had a right to lawfully enter the residence. And because the State did not present evidence that Crull's right to enter her own home was relinquished or revoked by her decision to live in her truck while Brock continued to occupy the home, the evidence is insufficient to sustain Crull's residential burglary conviction.
Judge Bradley Maxa dissented in part:
I believe that this evidence was sufficient to establish that Crull's entry in the house was unlawful and therefore that she committed residential burglary. Crull certainly could argue that she had the right to enter the house because she still was a title owner. And she may have had the "better" argument. But at some point, even a title owner loses her entitlement to enter a house at any time she pleases. A reasonable jury could have found that the entry was unlawful based on the fact that she had not lived in the house for six months, now was living several hours away, and essentially broke into the house….