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Nevada Supreme Court: Person Cannot Burglarize His Own Home

The Supreme Court of Nevada recently considered whether a husband who is separated from his wife may be charged with burglary of the marital home. In State v. White, the defendant and his wife had agreed to separate, and agreed that the wife would live in the marital home with the children during the week, and the defendant would live there with the children on the weekends. When one spouse was living in the home during his or her designated time, the other spouse would go elsewhere. The defendant retained a key to the residence.

The defendant learned that the wife had permitted her new boyfriend to move into the residence with her during the week, and began harassing her about it. On a Friday, the defendant arrived at the marital home earlier than usual, entered the house with his key, and asked to speak with the wife. Although she initially told the defendant that he was not supposed to be at the residence at that time, the wife finally agreed to speak with the defendant in a bedroom, while the boyfriend tended to one of the children in another bedroom. An argument between the wife and the defendant resulted in the defendant shooting the wife in the stomach, and then shooting the boyfriend in the arm and in the abdomen. The gunshot wound eventually killed the wife.

The defendant was charged with burglary while in possession of a firearm, murder with use of a deadly weapon, attempted murder with use of a deadly weapon, carrying a concealed firearm, and ten counts of child abuse, neglect, or endangerment. The defendant filed a pretrial petition for writ of habeas corpus, arguing that a person cannot be charged with burglary of his or her own residence. The district court agreed, and dismissed the burglary charge.

On appeal, the Nevada Supreme Court analyzed Nevada’s burglary statute, NRS 205.060(1), which provides that “a person, who, by day or night, enters any house, … or other building, … with the intent to commit a grand or petit larceny, assault or battery on any person or any felony, … is guilty of burglary.” The statute differs from common law burglary in that it omits any requirement of a “breaking,” entry need not be forcible, and the entry need not occur at night. Instead, the statute only requires that the person enter with an intent to commit one of certain specified offenses.

The court concluded that a person with an absolute, unconditional right to enter a structure cannot commit burglary of that structure. Accordingly, the court found that the defendant could not have committed burglary because he had an absolute right to enter the family’s residence, and could not be refused admission or rejected from the residence. The court affirmed the lower court’s dismissal of the burglary charge.