STATE v. ASHBY (2011)

DISSENT

Missouri has no criminal statute defining what constitutes a “building.”

Missouri has but a single case defining “building” as used in the current burglary statute. “Building” is defined as:

a constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure-distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy․

State v. Washington, 92 S.W.3d 205, 210-11 (Mo.App.W.D.2002)(citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 292 (1971)(italics supplied). Obviously, because the italicized words make plain that the instant structure must be “serving as a dwelling,” this structure does not yet qualify as a “building.”

It is theorized that the burglary statute is “inclusive” because the statute uses both “inhabitable structure” and “building.” This theory then announces that the statute is meant to include structures that are not ready for dwelling, as well as structures not intended as dwellings. I agree that the term “building” is intended to embrace a structure not intended as a dwelling. But I do not conclude that the term “building” is intended to include a dwelling structure not ready for habitation. And I would not interpret this criminal statute as “inclusive” given its “lack of restrictions.”

Missouri has long applied the rule of lenity. It instructs that criminal statutes should not be extended by judicial interpretation so as to embrace persons and acts not specifically and unambiguously brought within its terms. State v. Lloyd, 7 S.W.2d 344, 346 (Mo .1928). It requires that criminal statutes be strictly construed against the State and in favor of the defendant. See Goings v. Missouri Dept. of Corrections, 6 S.W.3d 906, 908 (Mo. banc 1999). Indeed, the Missouri Supreme Court has applied the rule of lenity for over a century-such as it did to disallow an expansive use of the term “building” in the prosecution of burglary. State v. Schuchmann, 33 S.W. 35 (Mo.1895).

Thus, I would reverse the burglary conviction. I respectfully dissent.

SHERRI B. SULLIVAN, P.J., concurs. LAWRENCE E. MOONEY, J., dissents.