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August 21, 2006

Interesting question popped up today in the office:  a client's charged with burglary for breaking into a home during the daytime.  One of the elements is that the someone "was present or likely to be present."  Does the fact that the homeowner was at work get the charge reduced from a second to a third degree felony?

It may, according to In re Meatchema case out of the 1st District a couple weeks ago.

The evolution of this issue is interesting.  There's a 1977 Supreme Court case, State v. Kirby, 50 OSt2d 41, which essentially held that, since the house was a permanent habitation, it was "not reasonable" for the jury to conclude that no person was likely to be present.  This was a bad decision:  as the Court later noted six years later in State v. Fowler, 4 OSt3d 16, if you read Kirby as saying that anytime the state proves the burglarized premises were a temporary or permanent habitation, it's presumed that a person is likely to be present, you essentially have created a conclusive -- and unconstitutional -- presumption as to the existence of an element of the crime.

In Fowler, the Court held that evidence that the homeowners were "in and out" of the house on the day in question was sufficient to prove they were "likely to be present."  Meatchem's at the other end of the scale:  the family didn't live in the home during the summer, but only checked on it a couple of times a week.

The cases on this from our district are fairly decent, from a defense standpoint.  A good one to start with is a case from 1999, State v. Cantin, 132 OApp3d 808.  The facts aren't great -- the home was in disrepair, and no one was living in it -- but it contains an excellent summary of the case law on the issue.  A better one is a decision from three years earlier, State v. Lockhart, 115 OApp3d 370, where the court found the "likely to be present" element hadn't been proved where the only evidence was that the homeowner was at work from 8:30 to 5:00 on the day in question.

Although they cases are fairly fact-dependent, there are some general points to keep in mind.  First, as Meatchem indicates, "likely" means "probable."  Second, the more rigid the homeowner's schedule, the better the chance that they'll be held not "likely to be present."

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