Opinion
Case No. 20030751-CA.
Filed February 25, 2005. Not For Official Publication.
Appeal from the Fourth District, Provo Department, The Honorable Anthony W. Schofield, Judge.
Margaret P. Lindsay, Orem, for Appellant.
Mark L. Shurtleff and Brett J. Delporto, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Orme.
MEMORANDUM DECISION
Scott D. Oakey appeals his conviction of burglary, a second degree felony.
"Burglary is a felony of the third degree unless it was committed in a dwelling, in which event it is a felony of the second degree." Utah Code Ann. § 76-6-202(2) (2003). A dwelling is defined as "a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present." Id. § 76-6-201(2) (2003).
Oakey claims that the district court committed plain error by submitting the second degree felony burglary charge to the jury because the evidence was not sufficient to establish that the burglarized cabin was a "dwelling." Accordingly, he requests a reduction of his burglary conviction to a third degree felony. The issue was not preserved below through an appropriate motion challenging the submission of the second degree burglary charge to the jury; therefore, Oakey relies upon an argument of plain error. See State v. Holgate, 2000 UT 74, ¶ 16, 10 P.3d 346 ("[A]s a general rule, a defendant must raise the sufficiency of the evidence by proper motion or exception to preserve the issue for appeal."). "[T]o establish plain error, a defendant must demonstrate first that the evidence was insufficient to support a conviction of the crime charged and second that the insufficiency was so obvious and fundamental that the trial court erred in submitting the case to the jury." Id. at ¶ 17. Only after an appellant demonstrates that the evidence was insufficient to support the verdict is the appellate court called upon to "determine whether the evidentiary defect was so obvious and fundamental that it was plain error to submit the case to the jury." Id. at ¶ 18.
The State contends that State v. Cox, 826 P.2d 656 (Utah Ct.App. 1992), is dispositive of the issues raised on appeal. We agree. The issue presented in Cox was whether a cabin occupied less that fifty percent of the time, i.e., two or three nights per week, is a "dwelling" under Utah's burglary statute. We concluded that "the term `usually occupied' refers to the purpose for which the structure is used." Id. at 662. Therefore, "[i]f the structure is one in which people typically stay overnight, it falls within the definition of dwelling under the burglary statute." Id. We concluded that "our second degree burglary statute is intended to protect people while in places where they are likely to be living and sleeping overnight, as opposed to protecting property in buildings such as stores, business offices, or garages." Id. Contrary to Oakey's assertion, theCox holding was not dependent upon the amount of time the cabin was occupied. Instead, it focused upon "the purpose for which the structure is used." Id. Accordingly, the trial court did not commit plain error in submitting the second degree felony burglary charge to the jury.
Oakey next claims that trial counsel was ineffective in failing to move for a dismissal of the second degree felony burglary charge on grounds that the evidence was insufficient to demonstrate that the cabin was a dwelling. Oakey acknowledges that a charge of ineffective assistance of counsel for failing to move to dismiss a charge for insufficient evidence "succeeds only if the State's evidence was not sufficient to support a conviction." State v. Reyes, 2000 UT App 310, ¶ 6. "So long as there is some evidence, including reasonable inferences, from which findings of all the requisite elements of the crime can reasonably be made, our inquiry stops." State v. Mead, 2001 UT 58, ¶ 67, 27 P.3d 1115. There was sufficient evidence to establish that the cabin was a dwelling under the Cox analysis. Accordingly, counsel did not render ineffective assistance in failing to move to dismiss the second degree felony charge.
Accordingly, we affirm the conviction for burglary of a dwelling, a second degree felony. Oakey does not challenge the theft conviction on appeal.
Russell W. Bench, Associate Presiding Judge, James Z. Davis, Judge, and Gregory K. Orme, Judge.