In the Matter of T.J.E.
426 N.W.2d 23 (1988)
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Rule of Law:
To be convicted of burglary for 'remaining in' an occupied structure with intent to commit a crime, the defendant's presence must be unlawful. A person who lawfully enters a public business and only forms the intent to commit a crime after entry does not commit burglary under this provision.
Facts:
- T.J.E., an 11-year-old girl, entered a retail store during business hours with her aunt.
- While inside the store, T.J.E. took a piece of candy from a display.
- T.J.E. ate the candy while still in the store.
- T.J.E. and her aunt then left the store without paying for the candy.
- A store manager stopped T.J.E. outside the store, and she admitted to eating the candy without paying.
Procedural Posture:
- The State filed a petition in circuit court alleging that T.J.E. was a delinquent child.
- The petition charged T.J.E. with committing the offense of second-degree burglary.
- Following an adjudicatory hearing, the circuit court sustained the allegations, finding T.J.E. to be a delinquent.
- T.J.E. appealed the circuit court's adjudication and disposition to the Supreme Court of South Dakota.
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Issue:
Does forming the intent to steal after lawfully entering a retail store open to the public constitute second-degree burglary under a statute that criminalizes 'remaining in' an occupied structure with intent to commit a crime?
Opinions:
Majority - Wuest, Chief Justice
No, forming the intent to steal after lawfully entering a store does not constitute second-degree burglary. To interpret the word 'remains' in the burglary statute to apply to someone lawfully on the premises would lead to absurd results, such as making every shoplifter a burglar. The court reasoned that the legislature did not intend this outcome and looked to other jurisdictions, particularly California, for guidance. It concluded that the history and purpose of burglary law require that the defendant have no right to be in the structure. Therefore, the statutory term 'remains' must be construed to mean 'unlawfully remains,' which means the defendant's presence must have become unlawful before or at the time the criminal intent was formed. Since T.J.E. was lawfully in the store when she formed the intent to steal the candy, her conduct constituted larceny, not burglary.
Concurring - Henderson, Justice
No, this conduct does not constitute second-degree burglary. The prosecution's decision to charge an eleven-year-old with a felony for the petty theft of a piece of candy is a preposterous result and a gross abuse of prosecutorial discretion. This charge is contrary to common sense and justice, and the punishment is so grossly disproportionate to the act that it violates the Eighth Amendment's prohibition on cruel and unusual punishment. The child's confession was also likely coerced under the totality of the circumstances. This de minimis act should never have been prosecuted as a felony and the adjudication is a needless affliction that shocks the conscience.
Analysis:
This case significantly narrows the scope of South Dakota's second-degree burglary statute by judicially inserting a requirement of unlawfulness into the 'remains in' element. The decision prevents prosecutors from elevating minor shoplifting offenses into serious felonies, which could lead to absurd and unjust outcomes. It establishes a clear precedent that the act of burglary requires a trespassory element, meaning the defendant must lack the legal right to be in the location when the criminal intent is present. This ruling aligns South Dakota with the traditional understanding of burglary and the statutory schemes of many other states.
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