The Abandonment Defense

The Abandonment Defense

The last sentence of § 221.1(1) supplies the abandonment defense, the one defense the burglary definition states in its own words: "It is an affirmative defense to prosecution for burglary that the building or structure was abandoned."¹ An affirmative defense is a matter the defendant raises that sits outside the elements of the offense. It does not deny that the prosecution's elements are met; it offers a separate reason the defendant should not be convicted even if they are. The text reflects that arrangement. The open-to-the-public and licensed-or-privileged exceptions sit inside the sentence that defines the crime, while abandonment stands in a sentence of its own and carries the label of a defense. How a defendant must raise it, and who bears the burden of proof on it, depends on the Code's general provisions and on the jurisdiction applying them, and this chapter does not detail those rules.

The reason for the defense follows from what burglary protects. The offense guards places that someone occupies or secures, because the harm of an entry with criminal purpose is the intrusion on a place under another person's control. When a structure has truly been given up, no occupant or owner is exercising that control, and the interest the offense protects is absent. The Code's drafters chose to narrow burglary considerably, and the result is a provision that reaches a building or occupied structure that has not been abandoned.² Casting abandonment as a defense and not as an element does a second job. The defendant is the person who knows what was entered and why it looked deserted, so the issue comes into the case when the defendant raises it. Abandonment does not become one more thing to be established in every burglary prosecution, including the great majority in which no one suggests the place was deserted.

The same defense appears in the neighboring offense. Section 221.2(3)(a) makes it an affirmative defense to criminal trespass that a building or occupied structure involved in an offense under subsection (1) was abandoned.³ The wording differs slightly, since the burglary sentence speaks of a "building or structure" and the trespass paragraph of a "building or occupied structure," but both provisions treat abandonment as a defense and not as an element of either offense.⁴ A derelict structure therefore raises the same defense whichever of the two offenses is charged.

The two scenes share the elements, the purpose, and the absence of any license, and they differ only in what the owner did with the structure. That one variable decides the defense. The material here does not define abandonment, so an answer should reason from the facts that separate Fay's building from Gus's house: whether the owner has relinquished the structure with no plan to return, whether anyone uses it, and whether anyone keeps it secured. A Kentucky statutory problem shows how differently the same kind of fact can be handled elsewhere. A client who entered a house its owners had left empty for two years, because they could not afford structural repairs, argued that the house was a building and not a dwelling, which would reduce a second-degree burglary charge to third degree under Kentucky's statutes.⁶ That argument is about how the structure is classified and therefore about the grade of the offense, and the material here does not report how the Kentucky question is resolved. Section 221.1(1) puts abandonment to a different use, because it answers the burglary prosecution itself: if the defense succeeds, no burglary conviction remains to be graded.

The word abandoned invites a second reading that is wrong. The defense concerns the premises, since it is the building or structure that must have been abandoned. It says nothing about an actor who enters with a criminal purpose and then gives up the plan. The idea of abandoning a criminal plan belongs to attempt law, where it raises its own questions about an incomplete offense, and it has no place in this sentence of the Code. The burglary offense is defined by an entry with purpose, and the defense sentence addresses only the structure.⁷

Students lose this issue when they treat the actor's change of heart as the abandonment the Code names, because the defense turns on what the owner did with the structure and never on what the actor decided after entering.

The last connection runs back to the definition of an occupied structure. As explained earlier in this chapter, the Code protects an occupied structure whether or not anyone is present at the moment of entry. An empty shop at 3 a.m., a family's home during a vacation, and Gus's lake house in winter are all unoccupied at that moment, and each remains protected. Emptiness at the time of entry describes who happens to be inside, while abandonment describes what the owner has done with the structure. Treating a vacant place as an abandoned one would hand the defense to nearly every burglar of a closed business, since such places are routinely empty when they are entered.