The Court of Appeals in SYDNOR v. UNITED STATES decided on January 14, 2016, reversed the lower court’s burglary conviction and issued an order for the trial court to enter a judgment for unlawful entry instead.

The evidence revealed that the appellant had entered a fenced construction site and had removed steal pipes from the yard.

The burglary statute in part states: “whoever shall, either in the night or in the daytime, break and enter, or enter without breaking, . . . any yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade, with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense, shall be guilty of burglary in the second degree.”

At trial, the defense argued that because the construction material stored in the yard were not for the purpose of “trade” as they were not for sale, thus factually the evidence did not support a burglary charge and that a judgment of acquittal should be entered.

The trial court disagreed holding that the phrase “goods . . . kept for the purpose of trade” was not limited to items “waiting to be sold to someone else” and included construction materials stored on site for purposes of completing a repair job.

On appeal the defendant contended that the construction site was not a “yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade” and thus not within the meaning of the burglary statute as codified in D.C. Code § 22- 801(b).

The Court of Appeals refusing to expand the literal meaning of the statute held that because the government failed to prove any other uses for the steel pipes/casings other than their intended use which was construction repair at the site and that there was also no evidence that later they will be sold, bartered, or exchanged, or there was a future commercial transaction rather than for the current needs of the construction project – the construction site would not fall within the definition of “yard” as intended by the burglary statute and thus the conviction must be reversed.

The Court held that it was up to legislature to expand the definition of “yard” to encompass construction sites as was the case here.

And although burglary (requires entry with intent to commit a crime), and unlawful entry (entry without lawful authority and against the will of the lawful owner) do not have same underlying requisite elements, because the appellant had argued at trial that unlawful entry should be considered as the lesser included offense — and that the facts established beyond reasonable doubt elements of the unlawful entry — the trial court should entered a judgment for unlawful entry and vacate the burglary charge.

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