Can you be charged with first-degree burglary for entering a storage building?
Although the distinction between first, second, or third-degree burglary can be confusing, most people (including attorneys) understand that first-degree burglary is when you break into someone’s home while third-degree burglary involves breaking into someone’s building or business.
In State v. Massey, decided June 10, 2020, the SC Supreme Court clarified that you can be charged with first-degree burglary for breaking into a storage building that is only used for business purposes and that is not attached to a home.
Below, we will discuss the difference between first, second, and third-degree burglary and what State v. Massey means for you if you are charged with a burglary offense in SC.
First, Second, or Third-Degree Burglary?
The distinction between first, second, or third-degree burglary is huge – it’s the difference between a maximum sentence of five years in prison or a minimum sentence of 15 years and up to life in prison.
Although our goal in every burglary case is to get our client’s case dismissed or win it at trial, investigating, researching, and arguing for a reduction of burglary first or second degree to a charge of burglary third degree is common both in plea negotiations and at trial.
As a starting point, burglary third degree means you enter “a building without consent and with intent to commit a crime therein.”
A building could mean any place where people go to work, school, church, for entertainment, or where things are stored. Confusingly, the statutory definition of “building” also includes a place where “any person lodges or lives,” but, for purposes of burglary third-degree, a place where someone lives is a dwelling that will enhance the charge to second or first-degree burglary.
A person can be convicted of second-degree burglary if they enter “a dwelling without consent and with intent to commit a crime therein.”
So, what is a dwelling?
SC law defines a dwelling as any structure where a person sleeps or lodges or any outbuilding which is 1) within 200 yards of a dwelling and 2) appurtenant to the dwelling:
With respect to the crimes of burglary and arson and to all criminal offenses which are constituted or aggravated by being committed in a dwelling house, any house, outhouse, apartment, building, erection, shed or box in which there sleeps a proprietor, tenant, watchman, clerk, laborer or person who lodges there with a view to the protection of property shall be deemed a dwelling house, and of such a dwelling house or of any other dwelling house all houses, outhouses, buildings, sheds and erections which are within two hundred yards of it and are appurtenant to it or to the same establishment of which it is an appurtenance shall be deemed parcels.
That’s the starting point – “building” = third-degree burglary and “dwelling” = second-degree burglary. But then we must look at whether there are “aggravating circumstances” that would enhance the charge to the next degree…
Aggravating Circumstances and Burglary First-Degree
If a person is charged with second or third-degree burglary, that charge can be “upgraded” to first or second-degree burglary if there are aggravating circumstances including:
(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:
(a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or
(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or
(3) the entering or remaining occurs in the nighttime.
Assume that a person entered a storage building on someone’s property (the facts of Massey). It happened in the nighttime, which is an aggravating circumstance.
You might think that this would be a burglary second degree (punishable by no more than ten years – note that if the charge was “upgraded” from burglary third-degree it would be punishable by up to 15 years), because it is a storage building, no one sleeps in it, and it happened during the nighttime.
The SC Supreme Court says in Massey that it does not matter that it is used for storage and that no one sleeps in it – if it is appurtenant to the dwelling house, the proper charge is first-degree burglary (punishable by life in prison).
When is an Outbuilding “Appurtenant to” a Dwelling?
So, what does “appurtenant to” mean?
The definition of “dwelling” also includes “all houses, outhouses, buildings, sheds and erections which are within two hundred yards of it and are appurtenant to it or to the same establishment of which it is an appurtenance.”
The problem is that SC law does not define “appurtenant to” in this context. Does it mean, a place where people also sleep? Attached to the dwelling? Located within a certain distance from the dwelling? Owned by the same person? A part of the same parcel in the land records?
The Court of Appeals in Massey found that “the storage building is “separate from Victim’s dwelling” and appropriated to a distinct use, “as reflected by the commercial signage and Victim’s storage of his business tools there.” Id. The Court of Appeals further found “there was no evidence that the storage building was used as a dwelling or was in any way ‘annexed to’ or ‘attached to’ the home,” and upheld the trial court’s finding that the storage building could not support a burglary first-degree charge.
That is how most attorneys have interpreted “appurtenant to.” The SC Supreme Court disagreed, however. Although they also did not define “appurtenant to,” leaving the issue just about as murky as it was before they published their opinion, they offered some guidance:
“Appurtenant” has multiple meanings, depending on the context and the statutory language, so any extensive pronouncements regarding the law of burglary should be arrived at upon due consideration of a complete record. While Massey focuses on the import of separate parcels, it has also been recognized that appurtenancy, a factual question, has been widely equated with use.
According to the SC Supreme Court in Massey, “appurtenant to” does not mean:
- Owned by;
- Within a common enclosure or wall;
- Within sight of the dwelling;
- Physically attached to the dwelling or
- A part of the same plat.
It does mean:
- Used by the occupants of the house;
- “contributes materially to the comfort and convenience of habitation in the dwelling house;” or
- Near the house (proximity).
An “outbuilding” or storage shed can be considered a dwelling if it is within 200 yards (two football fields) of a dwelling and “appurtenant to” the dwelling.
If, as the SC Supreme Court says in Massey, “appurtenant to” means “a building near a dwelling that is used by the occupants and that contributes materially to the comfort and convenience of habitation in the house,” then you can be convicted of burglary first and sentenced to life in prison for taking a lawnmower from someone’s shed, even though it is located far from their home but still on their property (within two football fields of the home).
You can be convicted of burglary first-degree for entering just about any structure on someone’s property with the intent to commit a crime inside, and the charges of burglary second and third-degree are now limited to businesses, storage units, and other buildings that are not on the same property as a person’s home.
Motion to Quash the Indictment or Motion for Directed Verdict?
The SC Supreme Court did not decide that the building in Massey was appurtenant to the dwelling, although they certainly indicated that is a result they would approve.
Rather, their decision overturned the trial court’s decision to quash the indictment and held that the issue can only be decided on a motion for directed verdict after the state has presented their case – when the facts have been developed.