When Is It Burglary to Break Into a Home You Own, but Aren't Living in?

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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….

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  1. Both their first and last names would make good titles for a cop detective show.

    “J.C. & Buddy”

    “Crull & Brock”

    1. Mac and C.H.E.E.S.E.

  2. I wonder about Crull; has she resolved her mental health issues? Does that matter here?

    I wonder about neither trying to resolve the ownership. Crull may have mental issues as her excuse, but what is Brock’s? In all this brouhaha, has either talked to a lawyer?

    I especially cannot fathom the idea of living in a house and paying the mortgage and insurance when someone else is also on the title. Did that not ring alarm bells for Brock? Crull made some payments, for a while; was she expecting to move back in at some point?

    1. I wonder if the mortgage and insurance payments Crull was making were on “autopay” and if in her mental state she was not cognizant of that.

      Not that it matters much to what Brock did/thought though unless he somehow was aware the Crull wasn’t intentionally making these payments.

    2. ” In all this brouhaha, has either talked to a lawyer?”

      You presume that they had the ability to do so — between the cost and availability, an increasing percentage of the population lacks the ability to do so….

      1. If someone has been charged with a crime, but is unable to afford a lawyer, one will be appointed for them. Any ten-year-old in the country knows this, from watching television programs about cops that includes them providing Miranda warnings. What’s your excuse for not knowing this?

        1. on the contrary, i was once arrested at a time when i was indigent, and asked for appointed counsel, but the court said my equity in home made me ineligible.
          she’s in a similar situation.

          later, i was arrested for burglary for going into my own home, where i was not living at the time. they put me in lockup overnight but let me go in the morning with no charges.

          1. “on the contrary, i was once arrested at a time when i was indigent, and asked for appointed counsel, but the court said my equity in home made me ineligible.”

            Did you ask to be released to consult a banker so you could convert your equity to cash?

    3. “I especially cannot fathom the idea of living in a house and paying the mortgage and insurance when someone else is also on the title.”

      I once had the opportunity to do this. divorce court awarded the house to me, and I and my daughter continued to live in it even as my ex-wife flatly refused to execute a quitclaim deed. She also declined to refinance the motor vehicle that was awarded to her (along with the associated debt, that was joint) So, when she didn’t make any payments, and the vehicle was repossessed, the bank pursued me to pay off the balance.

  3. Who is the possessor? I may own a property but cannot break in while a renter is asleep or in the shower, without permission.

    The court said, “…that occupancy of the residence was uncertain…”

    Is the standard in criminal procedure, beyond a reasonable doubt, like 80% certainty? The court did not have that amount of certainty.

  4. Often on reading these articles I have an opinion on (separate from what the law says) whose side I’m on. Who “feels” right. I find this one unusually confusing, but I guess I feel rather sympathetic towards Crull’s situation. It also feels like Brock was taking advantage of the situation. He clearly was getting the benefit of solely occupying a house he half owned and for which his mentally ill former partner was (for a while) partially paying.

    As to the “third degree theft” charge, it doesn’t discuss the ownership of the items taken. Were they clearly owned by Brock? Jointly owned? Owned by Crull?

  5. Hi, Eugene. Instead of spending time on the idiocy of lawyer language, try addressing the 15 million common law crimes and the 100 million internet crimes going unanswered each year by your utterly failed profession. Your occupation is the most toxic in the nation, and must be crushed to save the country. You stink. Your IQ may be 200, but you are an idiot. I blame the brain damaging effects of 1L. Now you are doing the same to thousands of intelligent, ethical students over the course of your toxic career.

    A bank robbery nets $4000 and is hard work, risky, dangerous. An identity theft nets $5000, and is easy, risk free and totally immune, thanks to the atavism of the law. Try an update, you moron.

  6. Did they call their home “the Black Fortress?” It would make sense as to why she apparently decided to just not live there but still break in every now and then.

  7. When we see cases like this, it seems to show that the local police and prosecutors have forgotten what the public hires them for. The community didn’t hire them to protect against someone breaking into her own home.

    In addition to having forgotten society’s goals for establishing their authority, they also seem to have forgotten a part of their humanity and the ability to weigh the pros and cons of their actions. Who benefits from the charge or the trial or any of the other actions in this case? Seems like no one.

    1. I would imagine this case arose after Mr. Brock called the police because (from his perspective) his mentally ill ex-girlfriend had broken into his house and stolen his property, after improperly filing a restraining order against him.

      1. If that was Brock’s perspective, he reasons poorly.

      2. Which is a reasonable thing to do. But the prosecutor could have declined to charge her.

        Resolving ownership of property does not require a criminal charge.

        How does a criminal charge protect the public in this case? Seems like that wasn’t considered by anyone involved, except the sentencing judge.

  8. How did the case get to an appellate court, much less survive a motion to dismiss in the trial court? As a titled owner of a tenancy in common, the defendant had a legal right to enter the house. That’s basic property law. An attempt to keep the defendant out after the restraining order expired would have been the unlawful conduct.

    1. Could it have anything to do with this?

      “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.”

      I noticed “jumped over the gate” — which I presume means that it was locked. And that he then unlocked the front door for access.

      IANAA but wonder if this makes a distinction as *he* had no tenancy rights to the property.

      1. If Crull had right to enter without permission of Brock, she had right to get assistance from a third party to enter, and to give that third party permission to enter.

      2. That would explain the cops being called. It wouldn’t explain why a prosecutor would think it a good idea to bring charges against a woman for breaking into her own house.

  9. Is “experiencing homelessness” the new PC nomenclature?

    1. Yes it is. I wish there was a newsletter I could subscribe to in order not to inadvertently say something offensive because they changed the rules overnight.

      1. The APA Style Manual is close…

      2. The thing is, if you HAVE said something offensive, you shouldd apologize for doing so, whether you meant to say something offensive or not.

        AND, if you have apologized for unintentionally giving offense, then anyone you have offended should accept that apology.

        Sometimes, these “should”s are not honored. Ignore anybody who doesn’t do what they should as insignificant.

  10. I perceive too much missing information to permit any reliable conclusions. Why and by whom had the locks been changed? Why was one owner homeless while paying for a home? Where were the children? What precipitated the protection order? Was Brock a freeloader? Why did the state side with Brock by filing criminal charges?

    1. “Where were the children?”

      “Raised” is past tense — they likely have grown up and left.

      There is an interesting 2010 case out of Wisconsin involving a 1976 murder which mentions that the defendant’s former wife, Ja Cee Crull, had a husband named Buddy Brock.

      Assuming it’s the same two persons, if Crull was a “Go-Go Dancer” in 1985, that would put her in her 50s now — old enough to have adult children who have now been “raised.” Who knows who the father was — and I doubt that proof of marital status is required for witnesses, the cops well may have presumed they were legally married when she told them that her husband told her to tell them something.

      Anyway, here is the case — see items 13-15 starting on page 5.
      https://cases.justia.com/wisconsin/court-of-appeals/2010ap001864-cr.pdf?ts=1396152733

      1. bravo. it was odd how the case mentioned the children once and never again. your research was above and beyond.

    2. Brock changed the locks, or at least had them changed (the court said at one point “Brock did not inform Crull that he changed the locks”.) It doesn’t say why, but it says “she did not return to the home she shared with Brock until several days later” and the locks were changed in that time frame of “several days”, not over the course of several months or years. It’s too much of a coincidence to believe that he had some other reason to change the locks during those “several days” other than he wanted to keep her out, especially since he didn’t even try to contact her to tell her that he changed the locks.

      1. I sensed the locks were changed more than once; one change was ascribed to Brock, the other not explained. I could have been wrong.

        The writing is poor.

  11. I had a very similar fact pattern years ago and we (I was assisting the assigned counsel) did a Knapstad motion on same theory that prevailed here. Our trial judge agreed with us and dismissed the Burg. Prosecutor was furious, but chose not to appeal. I have to wonder, if he had, whether we would have prevailed at COA2. Judges Cruser and Veljasic were not on the bench at the time, but Judge Maxa was (I think). The Courts in WA have really been transformed by Governor Inslee. His commitment to making the judiciary more representative of the populations it serves is one of the least appreciated (for good or I’ll, depending on your perspective) aspects of his 8+ years as Governor. Both Judges joining in this opinion worked for the PA’s office prior to being appointed and then being re-elected to the COA.

    1. Does the granting of a Knapstadt Motion make the violation of the Rule against filing claims without merit a per se violation? Are all lawyers, including the judge and the prosecutor breaking the rule of having to report misconduct, if such a charge is not filed against self by the prosecutor?

      1. I don’t think so. You can have a good faith dispute about an issue that gets resolved by the judge. It doesn’t necessarily follow that ex ante the prosecutor was on notice that the charge lacked merit (or wasn’t supported by probable cause).

  12. If Crull had no license to enter, and Brock had no license to enter, I guess nobody had a license, not even an real estate agent of Crull or Brock in the future. Forevermore, the house would be unenterable by anyone.

    1. Surely you don’t mean to sweep up Santa Claus in your hypothetical.

  13. “When Is It Burglary to Break Into a Home You Own, but Aren’t Living in?”

    When you break and enter the domicile of another person, with the intent to commit a felony within.

  14. This case strikes me as a massive prosecutorial overreach, and the dissent strikes me as bewilderingly off-point.

    There was no fact issue here requiring a trial, and the case should have been filed, but given that it was, it never should have survived an initial pretrial motion to dismiss. To the dissenting judge who argues that “at some point, even a title owner loses her entitlement to enter a house at any time she pleases,” I reply: “Yes — at the moment she is formally and legally divested of her title, and not a minute earlier.”

  15. Bah. “[T]he case should never have been filed …,” I meant to write.

  16. As I see it, the dispute here, if any, is fundamentally civil, not criminal, in character. The fact that she posesses title to the house, and the absence of any order whatever its exact meaning in this context, at the very least creates a reasonable doubt regarding the state’s claim that the house wasn’t hers.

    I would have dismissed the charges without resolving the claim and said that the dispute between the parties about the division of their joint property belongs in civil court, not criminal court. It is not a matter for the police. And criminal court is not the place to resolve it.

    1. I also agree the prosecution here was frivolous. The flip side here is that in calling the police on her to arrest her for being in her own home, he was engaging in kidnapping by SWATing.

      I wouldn’t go that far. But the use of the police to resolve civil disputes has to be discouraged. And when there is a mixup of this sort, an outcome that lies between the two extremes of one or the other being guilty of a violent crime has to be possible.

  17. But at some point, even a title owner loses her entitlement to enter a house at any time she pleases.

    I’m struggling with this, from the dissent.

    I buy a house, go off to war, get captured, sit in a PoW camp for five years, come back and I can’t enter my house ? What is this “point” of which the judge speaks ?

    1. The point where it becomes the domicile of another person.

      1. So someone breaks in and sets up house there, and it becomes his?!

        1. Yeah. Don’t let someone else break in and set up house there if you don’t want this to happen.

  18. Is it “breaking into” a home if you enter via an unlocked door?

    1. Where I live opening a door is breaking, as is entering through an open window. I don’t think it legally matters whether the door is locked. Entering through an open door is not breaking.

    2. “Is it ‘breaking into’ a home if you enter via an unlocked door?”

      Depends on how the door comes to be unlocked.

  19. Compare People v. Gill, in California. https://caselaw.findlaw.com/ca-court-of-appeal/1286487.html Mr. Gill was pretty unquestionably a really crazy and evil guy, who clearly should be locked up for very long time, but I kind of thought that the burglary charge, count 10, was piling it on a bit thick.

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