Conviction Overturned in Family Burglary

Can you be convicted of burglary if you steal something in your own home?

Michael Glenn Rowe, 33, of Orange had been sentenced to 7 years in prison for stealing jewelry and a pistol from the home where he says he lived with his mother and stepfather.

But the state 4th District Court of Appeal threw out his convictions Thursday, ruling that Rowe’s jury should have had better instructions concerning Rowe’s defense that you cannot burglarize your own home.

Here were the circumstances:

Rowe, who had been convicted on previous robbery charges, lived with his mother and stepfather but was involved in a family dispute with them. He moved in with a girlfriend, but kept his things at his parents’ home.

His mother, however, had his things packaged and stored in the garage. His parents also had the locks on the door changed.

Rowe was arrested in August, 1986, after his parents discovered that a ring and a handgun were missing from their home. Rowe later admitted to Orange police that he had taken them and hocked them at a pawnshop.

Rowe’s primary contention at his trial was that no matter what he had done, he certainly could not be guilty of burglary, because it was his own home. And he said he did, indeed, have a key that fit the door.

Presiding Justice Harmon G. Scoville, in a unanimous opinion for the appellate court, ruled that you can be convicted of burglarizing your own home, if your access to that home is conditional.

The justice said if the jurors had accepted Rowe’s argument that there were no restrictions on his coming and going into the house, they may not have known that this was a reason to acquit him.

The jury should have been told that “an unconditional right to enter a dwelling is a complete defense to the charge of burglary,” Scoville ruled.

Rowe had ended up with a 2-year sentence on convictions of burglary and grand theft, but Superior Court Judge John H. Smith Jr. added 5 years because of his prior robbery conviction.

The appellate court threw out the convictions for both burglary and grand theft. The county district attorney’s office must now decide whether to retry the case.