State of Utah v. Cates

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Rick Keith Cates,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990402-CA

F I L E D
September 8, 2000 2000 UT App 256 -----

Eighth District, Vernal Department
The Honorable John R. Anderson

Attorneys:
Wesley M. Baden, Vernal, for Appellant
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Billings.

BILLINGS, Judge:

Defendant appeals his conviction of burglary of a dwelling, a second degree felony. Defendant claims he should only have been convicted of third degree burglary because the camping trailer where he committed the burglary was not a "dwelling."

At issue is whether a rented camping trailer with sleeping quarters, parked in the mountains and being used during the fall deer hunt, is a "dwelling" within the meaning of the Utah burglary statute, Utah Code section 76-6-202. That section provides: (1) A person is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit a felony or theft or commit an assault on any person.

(2) Burglary is a felony of the third degree unless it was committed in a dwelling, in which event it is a felony of the second degree. Utah Code Ann. § 76-6-202 (1999). The burglary statute defines "building" and "dwelling" as follows: (1) "Building," in addition to its ordinary meaning, means any watercraft, aircraft, trailer, sleeping car, or other structure or vehicle adapted for overnight accommodation of persons or for carrying on business therein . . . .

(2)"Dwelling" means a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present. Id. § 76-6-201.

Defendant argues the rented camping trailer was a "building" rather than a "dwelling," and he should therefore have been charged with a third degree felony, rather than a second degree felony. We disagree. Defendant ignores the plain language of the statute, case law, and the policy behind distinguishing burglaries of dwellings from those of other types of structures.

Defendant argues that a structure cannot be both a "building" and a "dwelling" under sections 76-6-201 and -202. However, under the plain language of the statute, it is clear that a "dwelling" is a specialized type of "building," one "which is usually occupied by a person lodging therein at night." Utah Code Ann. § 76-6-201(2) (1999). Thus, although not every "building" is a "dwelling," every "dwelling" is necessarily a "building" under the statute. Defendant's assertion that a rented camping trailer cannot be a "dwelling" because it is a "building" is therefore incorrect.(1)

This Court dealt with the interpretation of "dwelling" under section 76-6-201 and -202 in State v. Cox, 826 P.2d 656 (Utah Ct. App. 1992). We held that the statutory term "usually occupied" in section 76-6-201(2) "refers to the purpose for which the structure is used. If the structure is one in which people typically stay overnight, it fits within the definition of dwelling under the burglary statute." Id. at 662. In Cox, the defendant argued that a mountain cabin, occupied less than fifty percent of the time and unoccupied at the time of the burglary, was not a "dwelling" under the statute. See id. We concluded the cabin was a "dwelling," noting that "our second degree burglary statute is intended to protect people while in places where they are likely to be living and sleeping overnight, as opposed to protecting property in buildings such as stores, business offices, or garages." Id.

Like the cabin in Cox, the nature of camping trailers equipped with sleeping quarters is such that persons may typically be expected to use them for overnight lodging, especially in the mountains or camping areas. Indeed, the victims had rented this trailer for the express purpose of staying in it during the fall deer hunt, and had slept in it the previous night. The record reveals the trailer had its own table, bathroom, and beds, and was "self-contained," complete with dishes, pots and pans, and bedding. In short, it was equipped for overnight lodging, and was, when rented and parked, "usually occupied by a person lodging therein at night." Utah Code Ann. § 76-6-201(2) (1999).

Because the trial court correctly interpreted the Utah burglary statute to include a rented overnight camping trailer within the statutory definition of "dwelling," defendant's conviction of second degree burglary is affirmed.
 
 

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Judith M. Billings, Judge ----- WE CONCUR:
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 

______________________________
Russell W. Bench, Judge

1. We recognize that the statutory definition of "building" under § 76-6-201(1) includes "any . . . trailer . . . adapted for overnight accommodation of persons." Utah Code Ann. § 76-6-201(1) (1999). However, it is a rule of statutory construction that specific terms control over more general terms. See, e.g., Biddle v. Washington Terrace, 1999 UT 110,¶14, 993 P.2d 875. Thus, the more specific definition of "dwelling" may include a "trailer . . . adapted for overnight accommodations," if the trailer is "usually occupied by a person lodging therein at night." Utah Code Ann. § 76-6-201(1) & (2).