Description: Norman, Oklahoma, criminal defense lawyer represented the Defendant charged with First Degree burglary.

The sole issue raised by the State is whether there was sufficient evidence presented at preliminary hearing to prove the element of breaking an outer door or wall for the crime of burglary in the first degree. Specifically, whether the crime of first degree burglary may be committed by forcible entry into a door leading from a garage into a dwelling.

II.

¶4 The relevant facts presented at preliminary hearing were that the defendant was arguing with the resident of a house in the garage where the large overhead garage door was left open. The resident, who had a relationship with the appellee, told him not to enter the house, but he ignored her request and opened the door leading from the garage into the dwelling portion of the house. The dwelling was occupied at the time of the entry.

III.

¶5 The trial court's decision hinged on whether this door leading from the garage into the house was an outer door. The trial court relied on Hendricks v. State, 1985 OK CR 39, 698 P.2d 477, overruled in part by Parker v. State, 1996 OK CR 19, ¶ 23, n. 4, 917 P.2d 980, 986 n. 4,2 which the trial court interpreted to hold that the door leading from the garage into the house can never be an outer door required by 21 O.S.2011, § 1431. Hendricks may be read to support that conclusion, but that reading is a narrow reading not supported by the definition of a "dwelling house" and the elements of first degree burglary found in Oklahoma statutes.

¶6 First degree burglary is accomplished, as relevant to this case, by breaking into and entering the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, by forcibly bursting or breaking an outer door of such house. 21 O.S.2011, § 1431. A dwelling house as used in § 1431 is defined as "every house or edifice, any part of which has usually been occupied by any person lodging therein at night, and any structure joined to and immediately connected with such a house or edifice." 21 O.S.2001, § 1439. This definition has been a part of the Oklahoma statutes since statehood.

¶7 This definition provides that breaking into a building adjoining an occupied dwelling may form the basis for a first degree burglary charge. This expands the definition of a dwelling, but does not change the purpose of the first degree burglary statute--to punish those who enter an occupied dwelling by force (however slight).

¶8 In Hendricks the defendant broke into an unoccupied house. The occupant arrived home during her lunch break. The defendant exited the residence, but came back in through an undescribed opening in the garage, then opened the inner door from the garage into the now occupied house. The defendant assaulted the victim inside the residence.

¶9 This Court held that the Information was insufficient to charge the offense first degree burglary because the Information alleged that the defendant committed the crime by "entering through an opening in the garage and breaking open the inner door of the said dwelling house." Hendricks, 1985 OK CR 39, ¶ 4, 698 P.2d at 479 [emphasis added]. This Court held that the allegations did not bring the crime within the elements of first degree burglary. Id. 1985 OK CR 39, ¶ 5, 698 P.2d at 479.

¶10 In a footnote this Court said that the door broken by the defendant "was truly inside the residence, and its breaking could not constitute first degree burglary." Id. 1985 OK CR 39, ¶ 5, fn. 1, 698 P.2d at 479, n. 1. We hold that this blanket statement is not dispositive of the current case, and was clearly dicta in Hendricks. See Wainwright v. Witt, 469 U.S. 412, 422 (1985) (holding statements in a footnote were dicta because they were unnecessary to decide a case).3

¶11 The first degree burglary charge in Hendricks was reversed not because the defendant's actions failed to fall under the first degree burglary statute, but because the Information did not charge a first degree burglary offense.4 In the present case, we find the reliance on Hendricks to make a blanket statement that the door in question could never be an exterior door is misplaced. The inner versus outer door determination cannot be made by a bright line rule. It must be made by looking at the facts of a particular case. Because Hendricks does not resolve this issue, the issue is one of first impression.

¶12 The only case directly on point that discusses this issue in depth is Lacey v. Commonwealth, 675 S.E.2d 846 (Va.App. 2009). Lacey is not controlling precedent with this Court, but we look to it to analyze the law as it relates to our case.

¶13 In Lacey, the court held that a defendant's daytime entry into an opened garage door (one of two garage doors were open) then further entry from the garage through a closed door into a utility room and further into the house where he stole money did not constitute the crime of burglary. Id. at 852. The court reasoned that the garage was an integral part of the dwelling because the garage shared a roof and wall with the other portions of the house, the garage connected with other portions of the house, and the garage was used for ordinary household functions. Id. at 852.

¶14 The cases cited in Lacey are cases where a person breaks into a garage. In these cases, courts hold that the garage is part of the dwelling because they are integral to the house structure. They simply form one room of several making up a dwelling, or are used for storage of household goods. There is no doubt under Oklahoma law that breaking into an attached garage is first degree burglary. See 21 O.S.2011, § 1439. The cases cited in Lacey are not helpful to our analysis because they expand the definition of a dwelling just as Section 1439 does in Oklahoma.

¶15 We find that, therefore, the analysis in Lacey is flawed. The court in Lacey discounts a Virginia case which points out the reasons for a separate burglary of an occupied dwelling statute. In Yeatts v. Commonwealth, 410 S.E.2d 254, 266 (Va. 1991), the Virginia Supreme Court stated, "The burglary statutes exist to protect against 'the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence."5 This Court agrees and has said that "[a] first degree burglary always carries with it the likelihood for a violent encounter with an occupant . . .". Cleary v. State, 1997 OK CR 35, ¶ 74, 942 P.2d 736, 752.

¶16 This rationale leads this Court to believe that the legislature intended to expand the ways first degree burglary may be accomplished by expanding the footprint of a dwelling to include attached garages and outbuildings. This expansion does not diminish the methods that first degree burglary may be completed.

¶17 Our conclusion that first degree burglary may be completed by a breaking of the door leading between the garage and the living area of a dwelling makes logical sense. The door leading from a garage is a door unlike any interior door; for example, building codes treat this door specially.

¶18 The International Residential Code (IRC) has special safety standards for a door that separates the garage from the house interior.

Openings from a private garage directly into a room used for sleeping purposes shall not be permitted. Other openings between the garage and residence shall be equipped with solid wood doors not less than 13/8 inches (35 mm) in thickness, solid or honeycomb-core steel doors not less than 13/8 inches (35 mm) thick, or 20-minute fire-rated doors, equipped with a self-closing or automatic-closing device.6
¶19 These codes protect a dwelling from fire hazards usually stored in a garage and from the carbon monoxide fumes emitted from vehicles that might be parked therein.

¶20 When a garage is utilized in the manner a garage was designed to be used, while it may be an integral part of the house, it is a separate part of a house. It does not form part of the everyday activity of "dwelling." One does not simply dwell in their garage. In fact, dwell means to exist or to remain for a time or to live in a place.7 It does not appear that the garage in this case was a place where one simply existed or dwelt. It was merely a place to store items and park cars.

¶21 These garages usually have large overhead garage doors which are vulnerable and are many times left open during the day, and sometimes accidently during the night. When these doors are left open, the garage becomes nothing more than a carport and the door leading from the garage to the interior of the house becomes the outer door. When this door becomes the outer door, it may be the outdoor door sufficient to come under the requirements for first degree burglary. The burden is still on the State to show whether the door leading from the garage into a home is an outer door as defined by statute under the particular facts of a case.

¶22 Any language in Hendricks which is contrary to this decision is overruled. Our earlier cases which support the notion that breaking into a structure attached to an occupied dwelling may constitute first degree burglary are still valid.

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