Utah Court of Appeals
What constitutes a dwelling under Utah's burglary statute? State v. McNearney Explained
Summary
McNearney was convicted of second-degree felony burglary of a dwelling after breaking into a newly constructed but never-occupied house. The trial court denied his motion for directed verdict arguing the house was not a dwelling under Utah law. The Court of Appeals reversed, holding that a structure must actually be used for overnight lodging to qualify as a dwelling.
Practice Areas & Topics
Analysis
Background and Facts
In State v. McNearney, the defendant was convicted of second-degree felony burglary of a dwelling after breaking into a newly constructed house. The house had been completed for approximately eight months, was fully functional with appliances, and had been on the market for four months. However, it had never been occupied by anyone. The homeowner had built it next to his residence with the intent to sell.
Key Legal Issues
The central issue was whether the never-occupied house met Utah Code section 76-6-201(2)’s definition of a dwelling: “a building which is usually occupied by a person lodging in the building at night, whether or not a person is actually present.” This classification determines whether burglary is a second-degree felony (dwelling) or third-degree felony (building).
Court’s Analysis and Holding
The Court of Appeals disagreed with the trial court’s interpretation of State v. Cox, which had addressed sporadically occupied structures. The court emphasized that Cox focused on “the purpose for which the structure is used” and whether “the structure is one in which people typically stay overnight.” The analysis requires examining the actual use of the particular structure, not merely its structural capacity or intended purpose. Since McNearney’s target had never been occupied, it could not be “usually occupied by a person lodging therein at night” as required by statute.
Practice Implications
This decision provides important guidance for defending burglary charges involving unoccupied structures. Practitioners should focus on the use history of the burglarized building rather than its design or intended purpose. The court explicitly left unresolved situations involving previously occupied but currently vacant dwellings, suggesting this remains an area for potential challenge. Defense counsel should file motions for directed verdict when the evidence establishes that a structure has never been used for overnight lodging.
Case Details
Case Name
State v. McNearney
Citation
2011 UT App 4
Court
Utah Court of Appeals
Case Number
No. 20090463-CA
Date Decided
January 6, 2011
Outcome
Reversed
Holding
A never-occupied house does not meet the statutory definition of a dwelling under Utah Code section 76-6-201(2) because it has never been ‘usually occupied by a person lodging in the building at night.’
Standard of Review
Correctness for questions of statutory interpretation
Practice Tip
When challenging dwelling classifications in burglary cases, focus on the actual use history of the structure rather than its intended purpose or structural capacity for habitation.
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