Committee amends burglary law to allow inference of criminal intent, reports bill to full Senate

A Senate committee voted to report the committee substitute for Senate Bill 864 to the full Senate, as amended. The substitute revises the state's burglary code to add language about an individual's unlawful presence in a dwelling and to clarify what must be alleged in an indictment for burglary.

Committee counsel explained the substitute to members: "[T]he committee substitute ... is to the crime of burglary. You'll see that in subsection d, we just add a statutory, person's, presence, in a dwelling house that is unlawful when the presence is unlawful. And then in subsection e is just clarifying that in an indictment for burglary, that to be, alleged crime that the person may have intended to commit is not required to be set forth in that indictment." The counsel also read the dwelling-house definition, saying it "includes, but is not limited to, a mobile home, house trailer, module, or home factory built home, self propelled motor home, used as a dwelling regularly or only from time to time, or any other non motorized vehicle primarily designed for human habitation and occupancy."

Several senators raised concerns about how the changes would operate in practice. Senator Flamingo said, "I think I understand the the intent of this bill, but I live in the coal fields. We have a lot of abandoned places. If folks go into a home to check it out that's dilapidated, it's falling down some of our historical buildings, this would get them for burglary burglary." Counsel responded that the state would still need to prove intent even if the indictment need not list the specific intended crime and noted the inference could allow a jury to conclude intent based on the defendant's unlawful presence.

The committee debated whether subsection D's language created a presumption that would shift the burden of proof to defendants. Counsel distinguished inferences from presumptions: "We are not. I I looked into that. So there are presumptions which do, and there are inferences which do not. The inferences is a conclusion you based on facts that have been proven, whereas a presumption is you can just assume it's true regardless of other facts. And so, actually, just to kind of further that this, but this inference, and I'd that would not be appropriate under the constitutional standards." Counsel said the inference language in the substitute did not constitute an unconstitutional presumption.

Senator from Marion and others pressed procedural and fairness questions about indictments and charging specificity, noting that subsection E as drafted would allow indictments for burglary without specifying which crime the defendant intended to commit while in the dwelling. Senator from Aaron said he would vote no on the bill as written, calling the draft confusing and concerned it would invite challenges from defense counsel.

The committee adopted two amendments to the substitute. Members voted to add the words "of another" after "dwelling house" in subsection D to clarify the provision applies to a dwelling belonging to someone else. They also agreed to strike the word "outhouse" from the statutory heading and replace it with "outbuilding," matching the language used in the body of the substitute. After those amendments, the vice chair moved that the committee report the committee substitute as amended to the full Senate with a recommendation that it pass; the motion carried by voice vote.

The transcript does not show a roll-call tally of individual senators' votes. The record shows the committee agreed to the committee substitute as amended and will send the bill to the full Senate for further consideration.