People v. Ramos

Opinion

VOGEL (Miriam A.), J.

Is a dead man “temporarily absent” from his house? Since we doubt that he will ever return, we think not. We therefore reduce Edmond James Ramos’s conviction of first degree burglary to second degree burglary and remand for resentencing.

Facts

On November 23, 1994, Virgil Wagner died at home from natural causes. His daughter-in-law, Marilyn Ball, was notified of his death, and when she went to Wagner’s house two days later, she found that a microwave and a VCR were missing. Although Ball locked the house when she left, there were at least two more unauthorized entries into the house and other items were taken. When the police investigated, they found Ramos’s fingerprints inside Wagner’s house. When he was arrested, Ramos told the police that he went to Wagner’s house on November 23, knocked on the front door and, when no one answered, walked around to the back of the house. Since it

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appeared that no one was home, Ramos decided to go in and take something he could sell to obtain money to buy drugs. Ramos broke a window, entered the house, walked by Wagner’s bedroom, looked in and saw a body on the bed. The body did not move, so Wagner entered the bedroom to get a closer look. When he saw Wagner’s stiff body and his face “turned to the left with the eyes open,” Ramos ran out the door, grabbing the VCR on his way.

Ramos was charged with five counts of first degree burglary. At trial, the People presented evidence of the November 23 entry plus others occurring before and after Wagner’s death. During argument, the prosecutor conceded the later entries were second degree burglaries but argued that the November 23 entry was a first degree burglary because the house was “occupied” until Wagner’s remains were removed. The jury convicted Ramos of three counts, finding the November 23 entry was a first degree burglary and two other entries (after Wagner’s death) were second degree burglaries. Ramos appeals.

Discussion

I.

Ramos contends the evidence is insufficient to support his first degree burglary conviction because it shows that Wagner was dead at the time Ramos entered his house on November 23. We agree.