- housebreaking requires, inter alia, unlawful entry into a building or structure; a motor pool without walls or a roof, whether fenced or not, is obviously not a building; in addition, a fenced motor pool is not a structure for the purposes of Article 130, UCMJ
- Article 130, UCMJ, provides that any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking; according to the President’s explanation in the MCM, structure refers only to those structures in the nature of a building or dwelling
- a fenced motor pool is not a structure subject to housebreaking; both the commonsense meaning of “structure” within a housebreaking offense and the limiting language of the MCM leave no doubt that an open-air fenced area does not fall within the scope of Article 130, UCMJ, because it is not a structure in the nature of a building or dwelling ,
- the President’s clarification of the terms “building” and “structure” in the MCM provides a nonexclusive list of examples of buildings and structures which are in the nature of a building or dwelling; under the canon ofexpressio unius est exclusio alterius, the enumerated list suggests that any structure in the nature of a building or dwelling must fit within the sort of examples listed in the President’s explanation; and the enumerated areas are all enclosed spaces that serve the same purpose as a building or dwelling, even if some are moveable or temporary rather than fixed and permanent; accordingly, the meaning of a “structure” for the purposes of Article 130, UCMJ, is a more or less permanent constructed edifice, built up of parts purposefully joined together, more or less completely enclosed by walls and covering a space of land, or a building or construction intended to be or used for residence; the fenced motor pool at issue here did not fit within this description, even if the bays within it would; it is a concrete pad surrounded by a fence; the fences are not joined together such that they resemble the enclosure of a building, nor are they joined by a roof; neither are they a permanent structure, as the fences can be easily moved or removed, unlike a motor pool bay; nor is there any evidence in the record that the motor pool was either intended or suited to be a locale or venue where persons would take up residence; the mere presence of a fence cannot transform an outdoor area into a structure in the nature of either a building or a dwelling
- the fenced motor pool in this case is not a “structure” or a “dwelling” as contemplated by Article 130, UCMJ, because it is not an enclosed space in the same way that a building is and is not a place where persons would take up residence; to the extent that US v. Wickersham, 14 MJ 404 (CMA 1983) is inconsistent with this holding, it is overruled
CAAF Opinion Digest · III.A.56 · Crimes Pre-2019 offenses
Article 130 - Housebreaking
Offenses committed before 1 January 2019 (pre-2016 amendment) — opinions from the 1999 through 2020 Terms of Court.
5 digested opinions, 2002–2016 Terms
2016 (October Term)
2010 (September Term)
- the elements of housebreaking are (1) that the accused unlawfully entered a certain building or structure of a certain other person, and (2) that the unlawful entry was made with the intent to commit a criminal offense therein
- regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary
2009 (September Term)
- Article 130, UCMJ, outlaws unlawful entry into the building or structure of another with intent to commit a criminal offense therein; the President, however, has narrowed this language, stating that the definition of criminal offense does not extend to an act or omission constituting a purely military offense
- whether a particular Article 130, UCMJ, criminal offense is a purely military offense is determined by considering its elements, not by a survey of, or making other reference to, state and federal law; and whether something is a purely military offense depends on whether the UCMJ limits prosecution for the offense to servicemembers or contemplates the prosecution of a non-servicemember
- indecent acts with another, a violation of Article 134, UCMJ, is not a purely military offense, where by the terms of Article 134, UCMJ, that article might be violated by persons who are not and never have been in the military, and the MCM has not limited the application of indecent acts with another to military members only, as it has done with some other offenses listed under that article
- the MCM limits the application of some offenses listed under Article 134, UCMJ, to military members only; these offenses, such as fraternization and gambling with a subordinate, are purely military offenses; other crimes, however, such as bribery, graft, kidnapping, pandering, and prostitution are not so limited, nor would anyone otherwise consider them to be purely military offenses despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline
- the President’s analysis of the punitive articles is persuasive authority and may potentially further limit the application of some punitive articles to military members only, just as he limited the application of the housebreaking statute to cases where the underlying offense was something other than a purely military offense
- the application of Article 134, UCMJ, to punish indecent acts with another is not limited to military members, either expressly or by necessary implication; consequently, appellant’s housebreaking specification stated a viable offense when it alleged that he unlawfully entered a fellow airman’s room with the intent to commit indecent acts, despite the necessity of proving and pleading that the conduct was service discrediting or prejudicial to good order and discipline
2008 (September Term)
- an accused who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking; it follows that the second element of housebreaking requires a specific intent to enter with the intent to commit a criminal offense; the MCM defines a criminal offense as any act or omission which is punishable by courts-martial, except an act or omission constituting a purely military offense; as such, an act or omission identified as a purely military offense cannot form the basis for the underlying criminal offense required in a housebreaking charge
- to satisfy the underlying criminal offense element of housebreaking an accused must possess the intent to commit the crime stated in the specification
- the offense of conduct unbecoming an officer and gentleman under Article 133, UCMJ, is a purely military offense when it constitutes the underlying criminal offense for housebreaking under Article 130, UCMJ; only a commissioned military officer, cadet, or midshipman can commit the offense, and it is only a court-martial that has jurisdiction to prosecute such an offense; therefore, because it is a purely military offense, the offense of conduct unbecoming an officer and gentleman under Article 133, UCMJ, cannot serve as the underlying criminal offense for the purposes of an Article 130, UCMJ, housebreaking charge
- the MCM expressly states that an unlawful entry violation under Article 134, UCMJ, is a lesser included offense to a housebreaking charge under Article 130, UCMJ; the first two elements of unlawful entry are subsumed within the first element of housebreaking, which expressly requires that the accused “unlawfully entered” a certain location; the third element required for unlawful entry is inherently included within the second element of housebreaking
2002
- the lawfulness of an entry depends on authorization, negative or positive, express or implied and must be determined based on the circumstances in each case; seven factors are relevant, but not exhaustive, to this question: (1) the nature and function of the building involved; (2) the character, status, and duties of the entrant, and even at times his identity; (3) the conditions of the entry, including time, method, ostensible purpose, and numerous other factors of frequent relevance but generally insusceptible of advance articulation; (4) the presence or absence of a directive of whatever nature seeking to limit or regulate free ingress; (5) the presence or absence of an explicit invitation to the visitor; (6) the invitational authority of any purported host; and (7) the presence or absence of a prior course of dealing, if any, by the entrant with the structure or its inmates, and its nature
- an entry is "unlawful" if made without the consent of any person authorized to consent to entry or without other lawful authority; the word "authority" is one upon which the very nature of a military organization is based and carries with it the notion that implicit in a grant of authority is the understanding that it will be exercised for proper purposes
- under the facts of this case, authority to access a key to enter a warehouse carried with it an implicit obligation to enter the warehouse for an official or proper purpose and only to access the segregated area under the unit’s responsibility where: (1) there was evidence that the equipment in the warehouse for which appellant’s section was responsible was segregated from the lodging section’s equipment; (2) while appellant indeed had a key to the warehouse to gain access after hours, his officer-in-charge testified that there was no official need for appellant’s entry at the time in question; (3) the officer-in-charge also testified that he never authorized appellant to enter the warehouse for any purpose other than official business, suggesting a usual course of dealing with respect to access to the warehouse; and (4) the officer-in-charge further testified that his section did not have authority over any portion of the warehouse other than that part containing his section’s equipment
- the purpose for the entry, ostensible or otherwise, remains a relevant factor in determining whether the entry was lawful, i.e., whether the entry was consistent with applicable authority or evidence of the first element of housebreaking
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Last updated by the court: Oct 13, 2026 · mirrored Oct 29, 2026 · digest page IIIA56 · Always confirm a holding against the opinion itself (linked from each case name).