Reporter’s Note

After considering an ambiguity in the statute, the committee concludes that the term “occupied dwelling” means that the building is used as a place of residence.  Accordingly, the State need not prove that someone was physically present in the building at the time of the entry.  Resolving the ambiguity is a matter of statutory construction.  The Vermont statute, § 1201, classifies buildings or structures according to whether or not they are occupied dwellings.  There is no alternative category consisting of “unoccupied dwellings.”  Under these circumstances, the committee agrees with the following interpretation by the Michigan Court of Appeals:

      Under Michigan law, a residence need not in fact be occupied when the offense takes place in order for the offense to constitute a breaking and entering of an occupied dwelling. . . .  Any dwelling house habitually used as a place of abode, whether or not an occupant is physically present at the time of the breaking and entering, is an occupied dwelling within the meaning of the statute under which defendant was convicted.  When an inhabitant intends to remain in a dwelling as his residence, and has left it for a temporary purpose, such absence does not change the dwelling into an unoccupied one in the eyes of the law.  The intent to return following an absence controls; the duration of the absence is not material. . . .

People v. Traylor, 298 N.W.2d 719, 722 (Mich. App. 1980) (citations omitted).  See also People v. Abarrategui, 761 N.Y.S.2d 632, 634 (N.Y. A.D. 2003) (hotel was a “dwelling” for purposes of the burglary statute, even if no guests were physically present); cf. State v. Jones, 2011 VT 90, ¶ 13, 190 Vt. 586 (“the elements of burglary of an occupied dwelling are satisfied regardless of whether the occupants are awake or asleep, and regardless o[f] whether there is any direct interaction between the burglar and the victims”).  In a case reaching a different result, the statute distinguished between an “inhabited dwelling house” and an “uninhabited dwelling house.”  Given that distinction, the Alabama Supreme Court held that an “inhabited dwelling house” requires the physical presence of an occupant in the building.  Reeves v. State, 16 So.2d 699 (Ala. 1943).

A “building or structure,” for purposes of the burglary statute, need not have a roof. State v. Lampman, 2017 VT 114, ¶ 15, 206 Vt. 323 (concluding that “a jury instruction that defines ‘building or structure’ to include enclosures that lack a roof is consistent with the plain language of § 1201(a)”).