What acts constitute an entry into a building for purposes of a burglary statute?


Merlino v. State (Nev. Ct. App. – Sep. 10, 2015)

Under Nevada law, a person commits the crime of burglary when he or she enters a building with the intent to commit a predicate crime inside the building. The issue is whether NRS 193.0145, NRS 205.060(1), and NRS 205.060(5), which define the acts that can constitute an entry into a building for purposes of the burglary statute, encompass selling stolen property through the retractable sliding tray of a pawn shop’s drive-through window.

Merlino and her boyfriend, Byrd, befriended neighbor Wilson and would occasionally visit her in her apartment. During their visits, Merlino would sometimes bring Wilson food, clean her apartment, and run errands for her. Wilson eventually noticed that some jewelry was missing from her apartment and reported the theft, informing detectives with the Las Vegas Metropolitan Police Department that Merlino and Byrd might be responsible for the missing items. During their investigation, the detectives learned that Merlin had pawned items matching the descriptions of Wilson’s missing jewelry. Wilson identified the pawned items as belonging to her and indicated that Merlino did not have permission to possess those items. Merlino was subsequently charged by way of indictment with conspiracy to commit a crime, grand larceny, and three counts of burglary. She was convicted on all counts but on appeal challenged only her conviction on count five, one of the three counts of burglary.

Count five of the indictment charged Merlino with entering an EZ-Pawn store on October 24, 2011, with the intent to obtain money under false pretenses by pawning items stolen from Wilson. The evidence introduced at trial in support of this count demonstrated that, on that date, Merlino pawned five items of jewelry through the drive-through window of the EZ-Pawn by placing them onto a metal tray that slid in and out of the building.

EZ-Pawn employee Yazzie described the drive-through window and its tray. Yazzie could not recall the particular transaction involving Merlino but testified that, in general, pawn transactions through the drive-through window required a customer outside the store to place items onto a sliding tray, which the cashier would extend out to the customer and then pull back into the interior of the store. The cashier would retrieve the items from the tray and place documents and money onto the tray before sliding it back outside the store to where the customer could access the tray. Only when extended could the customer access the tray; when retracted, the tray was enclosed entirely within the walls of the building and could not be accessed from outside.

After the close of evidence, the district court instructed the jury. Among the instructions given was Instruction No. 23, which stated that an entry is deemed complete when, however slight, any portion of the intruder’s body penetrates the space within the building. Based upon this definition, the State argued that the sliding tray constituted part of the structure of the building and, therefore, Merlino entered the building by using the tray to pawn Wilson’s property. Merlino maintained that no part of her body entered the interior of the building and, consequently, no entry occurred.

On appeal, Merlin argued that the crime of burglary requires entry into the premises, and no such entry occurred when she merely placed items onto, and removed money from, the sliding tray of the drive through window. In response, the State argued that the sliding tray was part of the building, and therefore when Merlino’s hand entered the tray, the hand necessarily entered the building itself.

In Nevada, the offense of burglary is defined by NRS 205.060, which states, in pertinent part, as follows:

1. Except as otherwise provided in subsection 5, a person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of burglary.

An essential element of the offense of burglary is that the offender entered a building. NRS 193.0145 defines enter for purposes of the burglary statute as follows:

“Enter,” when constituting an element or part of a crime, includes the entrance of the offender, or the insertion of any part of the body of the offender, or of any instrument or weapon held in the offender’s hand and used or intended to be used to threaten or intimidate a person, or to detach or remove property.

NRS 193.0125 defines a building as including every house, shed, boat, watercraft, railway car, tent or booth, whether completed or not, suitable for affording shelter for any human being, or as a place where any property is or will be kept for use, sale or deposit.

The question is whether the evidence at trial, construed in the light most favorable to the State, was sufficient to demonstrate that Merlin entered the EZ-Pawn within the meaning of NRS 193.0125, NRS 193.0145, and NRS 205.060, by pawning items through the sliding tray of the drive through window. In this case, there is no evidence that Merlino used a weapon or otherwise threatened or intimidated any person during the commission of the charged crime. Therefore, The Nevada Court of Appeals explained that for Merlino’s conviction to stand, the evidence adduced at trial must demonstrate that some part of Merlino’s body, or something held in her hand, entered the building in question within the meaning of Nevada’s burglary statutes.

The Court noted that determining whether such an entry occurred in this case revealed a gap in Nevada’s statutory burglary scheme. NRS 193.0125 defines the term building with reference to the functionality of a structure; specifically, a structure is a building that can be burglarized if it is functionally suitable to afford shelter or to keep property for use, sale, or deposit. NRS 193.0145 defines entry with respect to the offender’s body or any tools that he or she uses. But the burglary statutes do not define the terms “enter” or “building” with reference to the size, shape, dimensions, or physical appearance of a particular structure. Consequently, the statutes do not delineate where the outer boundary of a structure begins and ends for purposes of determining when a particular structure has, or has not, been entered within the meaning of NRS 193.0145.

Common law burglary

The Court explained that the crime of burglary was originally a creature of the common law, but of all common law crimes, burglary today perhaps least resembles the prototype from which it sprang. At common law, burglary was the breaking and entering of a dwelling in the nighttime, and the law was intended to protect the sanctity of residences when its inhabitants were likely to be asleep and vulnerable. Thus defined, burglary was not an offense against real or personal property, but rather one against the habitation. Consequently, burglary was originally a crime of the most precise definition, under which only certain restricted acts were criminal. Most states, however, have replaced the common law crime with broader statutory definitions under which burglary has become one of the most generalized forms of crime, encompassing not only personal abodes, but also myriad other structures and even vehicles and commercial businesses in which people are unlikely to reside.

The Court further explained that Nevada adopted and applied the common law definition of the crime of burglary until 1911, when it enacted the original statutes that, over time, evolved into NRS 193.0125, NRS 193.0145, and NRS 205.060. The statutory definition of burglary originally created in 1911, and whose core has survived until today, is significantly broader than the common law definition in important ways. But, Nevada never legislatively defined the term “building” in a way that objectively explains where one begins and ends or, put another way, whether and when one has been “entered” or not under NRS 193.0145. In reviewing the common law for guidance, the problem the Court encountered was that many of the terms historically used to describe the crime of burglary were somewhat ill-defined. For example, an “entry” was traditionally deemed to occur when any part of the defendant’s person passes the line of the threshold. Consequently, the traditional definition of an “entry” and the traditional definition of a “building” were defined primarily in relation to each other; a building was entered when its threshold or outer boundary was penetrated.

At common law, the most widely used legal test for defining the outer boundary of a building, and when a building has been entered, was to inquire whether the airspace contained within it had been penetrated. Recognizing that modern burglary statutes exist to protect a property owner’s possessory interest in a building and the safety of its occupants, California has supplemented the airspace test with a reasonable belief test, articulated as follows: whenever the outer boundary of a building is not self-evident under the common-law airspace test, the outer boundary legally includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization. This test was designed to more closely mirror the normal expectations of privacy and safety that attach to property ownership and habitation.

The Court noted that in State v. White, 330 P.3d 482 (2014), the Supreme Court of Nevada recently explored the purpose of Nevada’s burglary statute in some detail and concluded that Nevada follows California burglary law in important respects. The White court concluded that Nevada’s burglary scheme was designed to protect the same interests as California’s, namely, to protect the owner’s possessory right in his property or premises and to prevent the danger associated with a felonious entry of the structure.

Therefore, the Court concluded that, when dealing with unorthodox contours or features such as the sliding tray in this case, the reasonable belief test represents a superior method for identifying the protected outer boundary of a structure than the common-law airspace test. Thus, whenever the outer boundary of a building is not self-evident from the shape and contours of the structure itself, the outer boundary is legally defined to include any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization. On the other hand, if the outer boundary of the structure is self-evident because the shape and features of the structure are traditional, then the common-law airspace test may be satisfactory.

The Court explained that under this test, stepping onto an unenclosed front porch has been held not to constitute a burglarious entry because a reasonable person would not believe that he or she would need permission to merely step onto the porch. On the other hand, opening and walking through a screen door to an enclosed porch, or a locked gate covered with iron mesh in front of an enclosed and roofed stairway, has been held to constitute a burglarious entry because a reasonable person would believe that he or she needed permission to do so. Similarly, climbing over the railing of a second-floor balcony bounded by a railing has also been held to constitute a burglarious entry.

Did Merlino cross the outer boundary of the building?

At trial, the State argued that Merlino entered the EZ-Pawn store by placing items onto—and removing money from—the sliding tray connected to the building while the tray was open. The Court noted that the dispositive question, however, was not whether she entered the tray, but rather whether she crossed the outer boundary of the building. Accordingly, the Court explained that the inquiry was whether the tray falls inside, or outside, the outer boundary of the building. Applying the reasonable belief test, the question became whether the tray, when open, constituted an element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization.

The Court explained that the tray in this case was retractable and could be manually opened and closed by the pawn shop cashier. When no customer is present, the tray is normally retracted into its closed position in which it rests entirely inside the perimeter of the wall of the pawn shop and its outer edge is flush with the wall. While closed, nothing can be placed into the tray from outside the building. When a customer wishes to do business through the drive-through window, the pawn shop cashier can manually push the tray outwards toward the customer so that it temporarily extends beyond the perimeter of the wall, giving the customer access to the tray for a few seconds during the transaction. After items have been placed inside the tray, the cashier may withdraw the tray into the perimeter of the wall into its closed position. A customer may place items into the tray while it is open, but the tray cannot be fully retracted into the store until the customer lets go of it.

When the tray is retracted entirely within the perimeter of the wall in its closed position, no reasonable person would believe that a member of the general public could force or pry the tray open without authorization in order to gain access to the interior of the building. While retracted into the building, the outer edge of the tray encloses an area that can reasonably be considered to fall within the permanent possessory rights of the building’s owner. Thus, the Court noted that forcing open a tray that has been closed would clearly constitute a violation of the building’s outer boundary.

However, The Court explained that the analysis is very different when the tray is extended outward in its open position. When open, the tray temporarily (for only as long as it takes to complete the transaction) extends some distance outside of the perimeter of the wall and occupies an area outside of the wall, a few feet above the ground. The Court believed that no reasonable person would believe that violation of the area temporarily enclosed within the tray while extended threatened the owner’s permanent possessory rights in the building. A building owner may construct a tray or box that attaches to the building in some way and moves around, but that does not mean that the owner necessarily owns the space within the box whenever it goes outside of the building as an incident of owning the building itself. Thus, the Court found that the sliding tray failed the reasonable belief test, and an item placed within the sliding tray cannot in any realistic sense be considered to be inside the boundary of the building until, and unless, the cashier manually draws it inside by retracting the tray.

The Court noted that in this case, the retractable tray was far more akin to a tool or instrument that can be manipulated to move objects into and out of the outer boundary of the building than it is a part of the boundary itself. At common law, the use of an instrument to breach a building could constitute a burglarious entry. But under NRS 193.0145, the instrument must be held in the offender’s hand, or at least operated by the defendant, to constitute an entry.

The Court explained that here, the tray was operated not by Merlino, but rather by the cashier, whose independent actions caused the tray to enter the building but who could have refused to do so. Thus, fairly described, Merlino placed stolen items into an instrument operated by someone else to cause something to enter the building after it left her hands. Her actions initiated a chain of events that ultimately caused the building to be entered, but the success of that chain of events depended upon the cooperation of the cashier. The Court determined that merely setting in motion a chain of events involving other people that culminates in stolen property entering the building did not equate to a criminal entry of the building by Merlino herself. Were it otherwise, then Merlino could conceivably have been convicted of burglary for hiring a courier to carry stolen property into the building, or even for mailing stolen items to the pawn shop through the U.S. mail.

Moreover, the Court explained that placing objects into the tray while standing outside did not implicate the same kinds of security and safety concerns as would arise had Merlino physically entered the pawn shop and potentially initiated a confrontation. Therefore, the Court vacated Merlino’s burglary conviction.

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