                                                                 ar
                                                  130 Nev, Advance Opinion
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                THE STATE OF NEVADA,                                   No. 62890
                Appellant,
                vs.
                                                                                 FILED
                TROY RICHARD WHITE,                                              JUL 1 0 2014
                Respondent.
                                                                                         EM. LINDEMAN



                                                                                   ipE   orrun CLERK
                            Appeal from a district court order granting defed ant's
                pretrial petition for a writ of habeas corpus, dismissing a burglary charge.
                Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez,
                Judge.
                            Affirmed.


                Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                Wolfson, District Attorney, Steven S. Owens and Jonathan E.
                VanBoskerck, Chief Deputy District Attorneys, and Ryan MacDonald and
                Michelle Sudano, Deputy District Attorneys, Clark County,
                for Appellant.

                Philip J. Kohn, Public Defender, and Scott L. Coffee and David Lopez-
                Negrete, Deputy Public Defenders, Clark County,
                for Respondent.




                BEFORE THE COURT EN BANC.




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                                                 OPINION

                By the Court, GIBBONS, C.J.:
                             In this opinion, we address for the first time whether a person
                can burglarize his or her own home. We conclude that a person cannot
                commit burglary of a home when he or she has an absolute right to enter
                the home.
                                    FACTS AND PROCEDURAL HISTORY
                             Troy White and Echo Lucas were married and lived together
                with five children in a house owned by White. In early June 2012, after
                having marital issues, the couple separated. White offered to move out of
                their residence. The couple agreed that Lucas would live in the residence
                with the children during the week, and White would live there with the
                children over the weekend. White retained his house key to use on the
                weekends. In late June, Lucas' new boyfriend, Joseph Averman, moved
                into the residence to live there with Lucas.
                             Averman testified that White would usually come to the
                residence between two and three o'clock in the afternoon on Fridays.
                White remained at the residence through the weekends, leaving on
                Sundays. During the weekends, Averman and Lucas would leave the
                residence and stay elsewhere until Sunday. Not surprisingly, White was
                unhappy that Lucas started dating Averman and began repeatedly
                harassing her with phone calls, voicemails, and text messages. He even
                threatened Averman, stating that "if you don't stay away, I'm going
                to ... kill you."
                              On Friday July 27, 2012, around two o'clock in the morning,
                White began banging on Lucas' bedroom window. Lucas called him and
                told him to stop because the kids were asleep in the house. White
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                returned to the house later that day around noon, entered the house with
                his key, and asked to speak to Lucas. She told White that he was not
                supposed to be at the residence at that time and they could talk later.
                However, she eventually agreed to talk to him for five minutes. Lucas and
                White went into the spare bedroom to talk while Averman tended to one of
                the children across the hall in the master bedroom. Averman then heard
                Lucas say, "[White], no, please don't, and stop." Averman, aware of prior
                abuse between Lucas and White, went to the room and saw Lucas attempt
                to leave the room before being pulled back into the room. White then
                pushed Lucas against the wall and shot her in the stomach. White turned
                toward Averman and shot him once in the right arm and twice in the
                abdomen. White then told Averman that "I told you this was going to
                happen." White fled the scene in Lucas' vehicle. Averman eventually
                recovered from his injuries, but Lucas died as a result of her gunshot
                wound.
                             The State filed a criminal complaint against White for (1)
                burglary while in possession of a firearm, (2) murder with use of a deadly
                weapon, (3) attempted murder with use of a deadly weapon, (4) carrying a
                concealed firearm, and (5) ten counts of child abuse, neglect, or
                endangerment. At the preliminary hearing, the justice court bound over
                White on all the charges and consolidated the child abuse charges.
                However, White argued that he could not be charged with burglary of his
                own residence. The justice court instructed the parties to file a petition
                with the district court in order to settle this issue.
                             White then 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 State filed a response arguing that Nevada's burglary

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                    statute clearly and unambiguously allows a person to be charged with
                    burglarizing his or her own home. The district court ultimately granted
                    White's petition, dismissing the charge for burglary while in possession of
                    firearm, and finding that (1) at common law one could not burglarize his
                    or her own residence; and (2) one cannot legally burglarize his or her own
                    residence "where there is no legal impediment such as a TPO, a
                    restraining order of some sort . . . that would otherwise limit the ability of
                    an owner to access their own property." The State now appeals.
                                                   DISCUSSION
                    A person cannot commit burglary of a home when he or she has an absolute
                    right to enter the home
                                 We have not previously addressed whether a person can
                    burglarize his or her own home. We review questions of law and statutory
                    interpretation de novo. Sheriff, Clark Cnty. v. Burcham, 124 Nev. 1247,
                    1253, 198 P.3d 326, 329 (2008). "When interpreting a statute, legislative
                    intent is the controlling factor."   State v. Lucero, 127 Nev. „ 249
                    P.3d 1226, 1228 (2011) (internal quotation marks omitted). To determine
                    legislative intent of a statute, this court will first look at its plain
                    language. Id.     "But when the statutory language lends itself to two or
                    more reasonable interpretations, the statute is ambiguous, and [this court]
                    may then look beyond the statute in determining legislative intent."       Id.
                    (internal quotation marks omitted). When interpreting an ambiguous
                    statute, "we look to the legislative history and construe the statute in a
                    manner that is consistent with reason and public policy."                  Id.
                    "Additionally, statutory construction should always avoid an absurd
                    result." Burcham, 124 Nev. at 1253, 198 P.3d at 329 (internal quotation
                    marks omitted).


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                             At common law, "burglary was generally defined as the
                breaking and entering of the dwelling of another in the nighttime with
                intent to commit a felony."       People v. Gauze, 542 P.2d 1365, 1366 (Cal.
                1975) (emphasis and internal quotation marks omitted). However,
                Nevada's current burglary statute, NRS 205.060(1), states that "a person
                who, by day or night, enters any house, . . . or other building,. . . with the
                intent to commit grand or petit larceny, assault or battery on any person
                or any felony, . . . is guilty of burglary."
                             We conclude that Nevada's burglary statute is subject to two
                reasonable interpretations: (1) the Legislature intended to revoke the
                common law rule that burglary requires entry into the building of another,
                or (2) the Legislature incorporated the common law requirement by failing
                to expressly include one's own home as a possible place of burglary.       See
                Gauze, 542 P.2d at 1366. 1 In order to resolve the two possible
                interpretations, we consider the purposes of common law burglary, the
                legislative intent of Nevada's burglary statute, and California's approach
                to whether one can burglarize his or her own home. 2


                       'California's burglary statute is nearly identical to Nevada's, and
                that state's legislature has also similarly expanded the structures that can
                be burglarized and eliminated the breaking requirement. Gauze, 542 P.2d
                at 1366. The California Supreme Court explained that the California
                Legislature's expansion of burglary could be interpreted in the same two
                ways. Id.

                      2 Even though the State argues that the plain language of Nevada's
                burglary statute clearly allows a person to burglarize a house that he or
                she owns and has an absolute right to enter, we hold that this
                interpretation could create absurd results and would not promote the
                policy behind common law burglary and its modern codification, NRS
                205.060. See Gauze, 542 P.2d at 1369 (noting that a person could
                                                                   continued on next page . . .
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                                The common law, "so far as it is not repugnant to or
                inconsistent with, the constitution or laws of the United States, or the
                laws of the territory of Nevada, shall be the rule of decision in all courts of
                this territory.... [and] should remain in force until repealed by the
                legislature."     Vansickle v. Haines,       7 Nev. 249, 285 (1872) (internal
                quotation marks omitted). Common law burglary was a crime against
                "habitation and occupancy" and "clearly sought to protect the right to
                peacefully enjoy one's own home free of invasion."         Gauze, 542 P.2d at
                1366 (internal quotation marks omitted) (noting that "a person's home was
                truly his castle"). Further, the common law was clear that a person could
                not be convicted of burglary for entering his own home with the intent to
                commit a felony. Id. "This rule applied not only to sole owners of homes,
                but also to joint occupants," thus "[t]he important factor was occupancy,
                rather than ownership." Id.
                                The Nevada Legislature has moved away from the common
                law definition of burglary in several respects. The current statute only
                requires an entry with the intent to commit certain enumerated offenses.
                State v. Adams, 94 Nev. 503, 505, 581 P.2d 868, 869 (1978). Breaking is
                no longer an essential element of burglary. Id. Further, the entry does
                not need to be a forcible entry, nor does the burglary need to occur at
                night. Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1113 (2002);
                NRS 205.060(1). Also, consent to the entry is not a defense to burglary if


                  . continued

                potentially commit burglary by walking into his house with the intent to
                forge a check, or with the intent to administer heroin to himself).


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                the person "acquired the entry with felonious intent." Barrett v. State, 105
                Nev. 361, 364, 775 P.2d 1276, 1277 (1989). While these changes certainly
                expanded the common law definition of burglary, the common law notion
                that burglary law is designed to protect a possessory or occupancy right in
                property remains in effect.
                            The basic policies underlying burglary statues also support the
                conclusion that a person cannot burglarize his or her own home when he
                or she has an absolute right to enter the home. Burglary statutes "are
                based primarily upon a recognition of the dangers to personal
                safety . . . that the intruder will harm the occupants in attempting to
                perpetrate the intended crime or to escape and the danger that the
                occupants will in anger or panic react violently to the invasion, thereby
                inviting more violence."      Gauze, 542 P.2d at 1368 (internal quotation
                marks omitted). The laws are not intended necessarily to deter the
                trespass or the intended crimes, but "[are] aimed at the danger caused by
                the unauthorized entry itself." Id. "The statute protects against intruders
                into indoor areas, not persons committing crimes in their own homes." Id.
                at 1369 (emphasis omitted).
                            We agree with the analysis of the California Supreme Court in
                Gauze, which relied upon these policies to reach the conclusion that a
                person with an absolute right to enter a structure cannot commit burglary
                of that structure.   Id. at 1367. In Gauze, the defendant entered an
                apartment that he rented with two other roommates and shot one of his
                roommates. Id. at 1365-66. The court concluded that the defendant did
                not commit burglary because he "invaded no possessory right of
                habitation." Id. at 1367. He had an absolute right to enter the apartment
                and could not be refused admission to his apartment or ejected from the

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                 apartment after entry. 3 Id. The court explained this conclusion by stating
                 "Mn contrast to the usual burglary situation, no danger arises from the
                 mere entry of a person into his own home, no matter what his intent
                 is ... no emotional distress is suffered, no panic is engendered, and no
                 violence necessarily erupts merely because he walks into his house."
                 Gauze, 542 P.2d at 1368.
                             Based on this analysis, we conclude that while the Legislature
                 has expanded common law burglary in several respects, it has at least
                 retained the notion that: (1) burglary law is designed to protect a
                 possessory or occupancy right in property, and (2) one cannot burglarize
                 his own home so long as he has an absolute right to enter the home. Thus,
                 while ownership may be one factor to consider, the appropriate question is
                 whether the alleged burglar has an absolute, unconditional right to enter
                 the home.
                 The district court did not err in granting White's pretrial petition for a writ
                 of habeas corpus
                              Applying our holding to the facts of this case, we now consider
                 whether the district court erred by granting White's pretrial petition for a


                       3 There  are common situations when a person does not have an
                 absolute right to enter a structure. For example, a husband does not have
                 a right to enter the house he owns with his wife if the wife obtained a
                 district court order granting her possession of the house. People v. Smith,
                 48 Cal. Rptr. 3d 378, 384 (Ct. App. 2006). Also, while customers have a
                 limited right to enter a store for lawful purposes, persons who possess the
                 intent to commit a felony therein are not entitled to enter. People v.
                 Barry, 29 P. 1026, 1026-27 (Cal. 1892). Lastly, a landlord does not have
                 an absolute right to enter a property he or she owns because the landlord
                 conveys the right of possession to the tenant. State v. Machan, 322 P.3d
                 655, 659 (Utah 2013).


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                writ of habeas corpus. When reviewing a district court's grant of a pretrial
                petition for writ of habeas corpus, we must "determine whether all of the
                evidence received at the preliminary hearing ... establishes probable
                cause to believe that an offense has been committed and that the accused
                committed it." Kinsey v. Sheriff Washoe Cnty., 87 Nev. 361, 363, 487 P.2d
                340, 341 (1971). "The finding of probable cause may be based on slight,
                even marginal evidence," Sheriff Washoe Cnty. v. Hodes, 96 Nev. 184, 186,
                606 P.2d 178, 180 (1980) (internal quotation marks omitted), and we will
                uphold the district court's determination of factual sufficiency absent
                substantial error. Burcham, 124 Nev. at 1257, 198 P.3d at 332.
                            Under the facts of this case, we conclude that the district court
                did not err in dismissing the charge against White for burglary while in
                possession of a firearm because he had an absolute right to enter the
                residence. Even though he orally agreed to stay elsewhere during the
                week, he still maintained an absolute right to enter the residence and did
                not forfeit any possessory right he had in it. Further, White could not be
                ejected or prevented from entering the residence, especially since he still
                retained his keys to the house and entered the house on a weekly basis to
                stay with his children on weekends. This conclusion supports the general
                burglary policy to protect against intruders, but not against persons
                committing crimes in their own homes, such as White. Thus, the State
                failed to provide slight or marginal evidence that White's entry into his
                residence invaded another's possessory right of habitation.
                                              CONCLUSION
                            We conclude that the Legislature has not eliminated the
                common law notion that a person with an absolute unconditional right to
                enter a structure cannot burglarize that structure. As such, we conclude

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                     that the district court did not err in granting White's petition for a writ of
                     habeas corpus. Accordingly, we affirm the order of the district court. 4




                                                           Gibbons

                     We concur:


                         dn' f1                       J.
                     Pickering


                                                  ,   J.
                     Hardesty


                        CAAA                          j.
                     Parraguirre


                                                      J.
                     Douglas



                     Cherry


                     offilt=_                         J.
                     Saitta




                              4 We
                                have considered the parties' remaining arguments and conclude
                     they are without merit.



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