State v. Burdick
2006 S.D. LEXIS 25, 712 N.W.2d 5, 2006 SD 23 (2006)
Rule of Law:
Under South Dakota Codified Law (SDCL) 22-32-8, as it existed prior to July 1, 2006, third-degree burglary did not require proof of unlawful presence or lack of authority to enter or remain in an unoccupied structure; rather, it only required entry or remaining with the intent to commit any crime other than misdemeanor shoplifting or retail theft.
Facts:
- Thomas Burdick was employed by Land O’ Lakes as a milk truck driver and delivery man, with a route including Ron's Market in Plankinton, South Dakota.
- Ron's Market had a front retail area and a back storage area, which was separated by a metal door secured from the retail portion during non-business hours.
- The market's owners provided Burdick with a garage door opener to allow him access to the storage portion of the building during non-business hours for deliveries.
- Between 2002 and 2004, Burdick regularly made milk deliveries to Ron's Market during late evening or early morning hours.
- On at least twenty occasions, after making his milk delivery, Burdick took one or more cases of soda pop from the storage area without the owner’s permission.
- The value of the soda pop taken by Burdick never exceeded one hundred dollars per instance.
Procedural Posture:
- Thomas Burdick was charged with twenty counts of third-degree burglary and twenty counts of petty theft.
- Burdick filed a motion in the circuit court (trial court) to dismiss the twenty burglary charges.
- After a preliminary hearing, the circuit court issued a written decision, ruling that prior case law required unauthorized or unlawful presence to sustain a burglary charge.
- The circuit court dismissed all twenty burglary counts because the state stipulated that Burdick had permission to enter the building.
- The State appealed the circuit court's order of dismissal to the Supreme Court of South Dakota.
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Issue:
Does a conviction for third-degree burglary under SDCL 22-32-8, as it existed prior to July 1, 2006, require proof of unlawful presence or lack of authority to enter or remain in an unoccupied structure?
Opinions:
Majority - Sabers, Justice
No, a conviction for third-degree burglary under SDCL 22-32-8, as it existed prior to July 1, 2006, does not require proof of unlawful presence or lack of authority to enter or remain in an unoccupied structure. The Court held that the plain language of SDCL 22-32-8 clearly indicated the Legislature's intent to criminalize entering or remaining in an unoccupied structure with the intent to commit any crime, with the only exception explicitly stated in the statute being for misdemeanor shoplifting or retail theft. The Court reviewed its prior jurisprudence, acknowledging inconsistent interpretations in cases like T.J.E. and Oster, which had introduced an 'unlawful presence' requirement. However, the Court noted that the Legislature's 1988 amendment in response to T.J.E. only added the shoplifting exception and did not codify an unlawful presence requirement, thereby rejecting this Court's reasoning in T.J.E.. The majority emphasized the principle of separation of powers, stating it is the Legislature's role to define criminal conduct and that the judiciary cannot create exceptions to criminal law based on its own notions of fairness or policy arguments, especially when the statutory language is clear and unambiguous. The Court also noted that while a future amendment effective July 1, 2006, would add a 'not privileged to enter or remain' requirement, it could not be applied retroactively to Burdick's case.
Dissenting - Meierhenry, Justice
Yes, to avoid absurd results and align with the spirit of common law burglary, a conviction for third-degree burglary should implicitly require proof of unlawful presence or lack of privilege to enter or remain. Justice Meierhenry argued that the majority’s interpretation cast the net of the burglary statute so broadly that it would ensnare any petty offense committed indoors, leading to absurd outcomes, such as a person facing felony burglary charges and potentially 200 years in prison for taking 20 cases of soda. The dissent referenced common law burglary, which was aimed at protecting habitation security, not merely property. It pointed to the upcoming July 1, 2006, amendment to SDCL 22-32-8, which would explicitly include a 'unless the person is licensed or privileged to enter or remain' clause, as evidence of legislative intent to narrow the statute's scope and effectively repeal prior cases that found consent irrelevant. The dissent contended that the court should apply the canon of construction requiring avoidance of absurd results and affirm the trial court's dismissal of the burglary charges.
Analysis:
This case is a landmark decision affirming the principle of strict statutory construction and judicial deference to legislative intent in South Dakota. It definitively clarifies the scope of third-degree burglary, rejecting previous judicially created requirements of 'unlawful presence' and highlighting the dangers of judicial activism in criminal statutes. The ruling underscored that courts must interpret statutes as written, even if the application leads to outcomes that some judges might view as harsh or unintended, reserving such policy adjustments for the legislative branch. This case significantly impacts the prosecution of burglary, emphasizing the intent to commit a crime inside, rather than the lawfulness of initial entry, as the key element, and effectively overruling prior inconsistent case law that required unauthorized entry.
