Section 2397

ASSIGNMENT 3 – Chapter 2

STEP 1: Identify the issue.

• Under Section 2397 of the state penal code, does a burglary occur when an individual enters a neighbor’s garage by breaking a window, takes three cases of beer, and the garage is a separate building located about 6 feet from the dwelling?

- OR -

• Did a burglary occur when an individual breaks into a garage? *Please note that phrasing the issue in this manner it very broad and does not give the reader an understanding of the full problem like the issue above.*

STEP 2: Identify the rule of law.

The statute defining burglary is Section 2397. The case of State v. Nelson interprets the term dwelling to include “outbuildings close to, but not physically connected with, a dwelling house, if such buildings are capable of being fenced in.”

STEP 3: Determine how the rule of law applies to the issue.

PART I: IDENTIFY THE ELEMENTS OF THE RULE OF LAW.

Section 2397 requires three elements: 1. Breaking and entering 2. a dwelling house of another 3. with intent to commit a crime.

PART II: APPLY THE FACTS OF THE CLIENT’S CASE TO THE COMPONENT PARTS.
The garage belongs to another because it is a neighbor’s garage. The court in State v. Nelson interpreted a dwelling to include an outbuilding close to the dwelling, if it is capable of being fenced in. The garage is probably capable of being fenced in, it is close to the house because it is 6 feet from the house, and it belongs to a neighbor; therefore, the second element is probably met. The act of taking the beer evidences a probable intent to commit a crime when he entered. Therefore, all the elements of the statute are met, and there is probably sufficient evidence to support a charge of