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21-5807. Burglary; aggravated burglary. (a) Burglary is, without authority, entering into or remaining within any:

(1) (A) Dwelling, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein; or

(B) locked or secured portion of any dwelling, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein;

(2) (A) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein; or

(B) locked or secured portion of any building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein; or

(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein.

(b) Aggravated burglary is, without authority, entering into or remaining within any:

(1) (A) Dwelling in which there is a human being, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein; or

(B) locked or secured portion of any dwelling in which there is a human being, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein;

(2) (A) building, manufactured home, mobile home, tent or other structure which is not a dwelling in which there is a human being, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein; or

(B) locked or secured portion of any building, manufactured home, mobile home, tent or other structure which is not a dwelling in which there is a human being, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein; or

(3) vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property in which there is a human being, with intent to commit a felony, theft, domestic battery, violation of a protection order or sexually motivated crime therein.

(c) (1) Burglary as defined in:

(A) (i) Subsection (a)(1) is a severity level 7, person felony, except as provided in subsection (c)(1)(B);

(ii) subsection (a)(2) is a severity level 7, nonperson felony, except as provided in subsection (c)(1)(B); and

(iii) subsection (a)(3) is a severity level 9, nonperson felony, except as provided in subsection (c)(1)(B); and

(B) (i) subsection (a)(1), with intent to commit the theft of a firearm, is a severity level 5, person felony; and

(ii) subsection (a)(2) or (a)(3), with intent to commit the theft of a firearm, is a severity level 5, nonperson felony.

(2) Aggravated burglary as defined in:

(A) Subsection (b)(1) is a severity level 4, person felony; and

(B) subsection (b)(2) or (b)(3) is a severity level 5, person felony.

(d) As used in this section, "sexually motivated" means that one of the purposes for which the defendant committed the crime was for the purpose of the defendant's sexual gratification.

(e) This section shall not apply to any person entering into or remaining in a retail or commercial premises at any time that it is open to the public after having received a personal communication from the owner or manager of such premises not to enter such premises pursuant to K.S.A. 21-5808, and amendments thereto, except when such person is entering into or remaining in such premises with the intent to commit a person felony or sexually motivated crime therein.

History: L. 2010, ch. 136, § 93; L. 2012, ch. 150, § 19; L. 2013, ch. 64, § 3; L. 2016, ch. 90, § 3; L. 2017, ch. 62, § 4; L. 2022, ch. 73, § 2; L. 2023, ch. 94, § 4; July 1.

Source or Prior Law:

21-3715, 21-3716.

CASE ANNOTATIONS

1. Where defendant is only charged with the "entering into" means of aggravated burglary, another person must be present at the time of entry. State v. Daws, 303 Kan. 785, 794, 368 P.3d 1074 (2016).

2. There is nothing in the statutory language that restricts the scope of the burglary statute to situations in which the defendant steals or intends to steal something from the interior of a vehicle, as opposed to attempting to steal or actually stealing the vehicle itself. State v. Potts, 304 Kan. 687, 699, 374 P.3d 639 (2016).

3. A locked sacristy inside an unlocked church does not fit the definition of building or structure. State v. Glover, 56 Kan. App. 2d 1234, 1239, 444 P.3d 367 (2019).

4. Conviction for burglary requires a showing of proof that someone had a present, subjective intent at the time of the crime to use the structure in question as a human habitation, home or residence. State v. Downing, 311 Kan. 100, 107, 456 P.3d 535 (2020).


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