Background
Earl Richard Kelly drove an acquaintance to a storage facility where the acquaintance rented two adjacent units next to units leased by victims Andrea Burns and Michael Scally. Upon visiting their unit, the victims discovered the lock was malfunctioning and several items were missing, including Scally’s valuable comic book collection. Investigation revealed that the wire ceiling separating the units had been cut and the bolt to the victims’ unit had been removed from the inside. Surveillance footage showed Kelly carrying a bin matching the victims’ property, and investigators found additional bins containing DVDs and bin lids consistent with the victims’ descriptions in the acquaintance’s unit.
Kelly was charged with second degree burglary and theft. The trial court granted the prosecution’s motion to continue the trial because victim Burns had a preplanned vacation to Japan scheduled through the end of the month. At the close of the prosecution’s evidence, Kelly moved for judgment of acquittal, arguing the storage unit did not qualify as a “building” required for second degree burglary. The trial court denied the motion and also declined to give jury instructions on third degree burglary as a lesser offense. A jury found Kelly guilty as charged, and the court sentenced him to six years in prison.
The Court’s Holding
The Colorado Court of Appeals affirmed Kelly’s conviction on all grounds. First, regarding the statutory speedy trial challenge, the court held that the trial court did not abuse its discretion in applying the statutory exclusion under § 18-1-405(6)(g)(I) for the continuance. Under Colorado law, a delay of up to six months may be excluded from speedy trial calculations when material evidence is unavailable, the prosecution exercised due diligence, and there are reasonable grounds to believe the evidence will become available. The court found Burns’ preplanned international vacation rendered her unavailable as a witness regardless of the reason for unavailability, and the prosecution’s issuance of a subpoena demonstrated due diligence. The court rejected Kelly’s argument that Burns could have rescheduled her vacation, noting the trial court was entitled to credit the prosecutor’s representation that international travel arrangements are generally nonrefundable.
Second, the court applied the four-factor Barker test for constitutional speedy trial violations and found no constitutional breach. Although the 13-month delay was attributable to the prosecution, it was justified by material witness unavailability. The court also noted that Burns’ unavailability prevented co-victim Scally from testifying because he is on the autism spectrum and Burns was concerned his mental health would suffer if required to testify without her present. Kelly’s only claim of prejudice—impact on employment—was conclusory and insufficient, and he made no showing that his ability to present a defense was impaired.
Third, the court held the trial court properly denied jury instructions on third degree burglary as a lesser offense. Third degree burglary and second degree burglary are not lesser/greater offense pairs because their elements are not subsumed within each other. Second degree burglary requires entry into a “building or occupied structure,” while third degree burglary applies to “vaults, safes, cash registers, coin vending machines” and similar equipment. A cash register qualifies for third degree burglary but would never constitute a building, so the statutory definitions do not establish the necessary element overlap. The court further held no rational basis existed in the evidence to acquit Kelly of second degree burglary while convicting him of third degree burglary because the storage unit plainly meets the statutory definition of a building.
Finally, the court held sufficient evidence supported the burglary conviction because a storage unit qualifies as a “building” under Colorado’s definition: “a structure which has the capacity to contain, and is designed for the shelter of, man, animals, or property.” The statute’s plain language does not require a building to be standalone, contain multiple units, or be fit to shelter humans or animals—the storage unit was clearly designed to shelter property, satisfying the statutory test.
Key Takeaways
- A preplanned vacation can render a witness “unavailable” for purposes of Colorado’s statutory speedy trial exclusion, and the trial court acts within its discretion in granting continuances based on such unavailability when the prosecution exercised due diligence.
- Storage units constitute “buildings” under Colorado’s second degree burglary statute because they are structures designed for the shelter of property, even if not fit to shelter humans or animals.
- Third degree burglary and second degree burglary are not lesser/greater offense pairs, so trial courts need not instruct juries on third degree burglary as a lesser included or lesser nonincluded offense.
- Constitutional speedy trial violations require consideration of delay length, reasons for delay, defendant’s assertion of rights, and prejudice; a 13-month delay is not presumptively violative when justified by witness unavailability.
Why It Matters
This decision clarifies that storage units fall within Colorado’s burglary statutes as “buildings,” closing a potential gap in criminal protection for commercial storage facilities. The holding reflects a functional interpretation of the statute’s plain language rather than requiring buildings to be residential or multi-unit structures. This has practical significance for prosecuting thefts from storage facilities, which have become increasingly common targets for burglary.
The opinion also reaffirms Colorado courts’ deferential review of trial court discretion in granting speedy trial continuances based on witness unavailability, whether caused by vacation or other circumstances beyond the witness’s control. The decision provides guidance that even preplanned personal absences can justify delay extensions if the witness’s testimony is material and the prosecution exercised due diligence in discovering the unavailability. Additionally, the clarification that third and second degree burglary are separate offense categories rather than a lesser/greater pair will affect jury instruction practice in future Colorado burglary cases.