Appeal from a district court order granting defendant's pretrial petition for a writ of habeas corpus, dismissing a burglary charge. Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge.
Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens and Jonathan E. VanBoskerck, Chief Deputy District Attorneys, and Ryan MacDonald and Michelle Sudano, Deputy District Attorneys, Clark County, for Appellant.
Philip J. Kohn, Public Defender, and Scott L. Coffee and David Lopez-Negrete, Deputy Public Defenders, Clark County, for Respondent.
Gibbons, C.J. We concur: Pickering, J., Hardesty, J., Parraguirre, J., Douglas, J., Cherry, J., Saitta, J.
BEFORE THE COURT EN BANC.
In this opinion, we address for the first time whether a person can burglarize his or her own home. We conclude that a person cannot commit burglary of a home when he or she has an absolute right to enter the home.
FACTS AND PROCEDURAL HISTORY
Troy White and Echo Lucas were married and lived together with five children in a house owned by White. In early June 2012, after having marital issues, the couple separated. White offered to move out of their residence. The couple agreed that Lucas would live in the residence with the children during the week, and White would live there with the children over the weekend. White retained his house key to use on the weekends. In late June, Lucas' new boyfriend, Joseph Averman, moved into the residence to live there with Lucas.
Averman testified that White would usually come to the residence between two and three o'clock in the afternoon on Fridays. White remained at the residence through the weekends, leaving on Sundays. During the weekends, Averman and Lucas would leave the residence and stay elsewhere until Sunday. Not surprisingly, White was unhappy that Lucas started dating Averman and began repeatedly harassing her with phone calls, voicemails, and text messages. He even threatened Averman, stating that " if you don't stay away, I'm going to . . . kill you."
On Friday July 27, 2012, around two o'clock in the morning, White began banging on Lucas' bedroom window. Lucas called him and told him to stop because the kids were asleep in the house. White returned to the house later that day around noon, entered the house with his key, and asked to speak to Lucas. She told White that he was not supposed to be at the residence at that time and they could ...