concurring in part and dissenting in part.
I concur in the affirmance of all of Appellant’s convictions except his conviction of burglary in the second degree under Count 15 of the indictment. That charge dealt with the burglary of the former dwelling of Junior Caskey, deceased.
An additional (third) element which distinguishes third-degree burglary, a Class D felony, from second-degree burglary, a Class C felony, is the nature of the property in or upon which the offense occurred. If the property is a “building,” the offense is third-degree burglary, KRS 511.040(1); if it is a “dwelling,” the offense is second-degree burglary, KRS 511.030(1). The definitions of “building” and “dwelling” are similar, but not identical. A “building” is defined, inter alia, as “any structure ... [wjhere any person lives,” KRS 511.010(l)(a); whereas, a “dwelling” is defined as “a budding which is usually occupied by a person lodging therein.” KRS 511.010(2). Thus, every dwelling is a building, but every budding is not a dwelling. Since the burglary of a budding is a Class D felony, KRS 511.040(2), and the burglary of a dwelling is a Class C felony, KRS 511.030(2), the legislature obviously considered the distinction to be significant and the burglary of a dwelling to be more grievous than the burglary of a mere budding.
Colwell v. Commonwealth, Ky., 37 S.W.3d 721, 725-26 (2000). Obviously, the legislature did not classify the burglary of a dwelling as a more serious offense than the burglary of a budding because of its structure or contents. Rather, the higher classification reflects the greater danger inherent in the burglary of a budding “usually occupied by a person lodging therein,” ie., that the person usually lodging therein might be kdled or injured whde defending against the depredation.
The evidence was undisputed that Junior Caskey died an accidental death approximately one week prior to Appellant’s unlawful entry into his residence. Despite the majority opinion’s gratuitous judicial notice that bereaved out-of-town relatives sometimes gather at their decedent’s former residence whde attending the decedent’s funeral, no evidence was introduced in this case that Junior Caskey had any out-of-town relatives, that his funeral was still pending, that anyone had even entered the residence or used it for any purpose between the date of his death and the date of the burglary, or that anyone intended to use it as a residence. No member of Caskey’s famdy or anyone else connected with him testified at Appellant’s trial. Detective Anderson testified that he learned of the burglary from an anonymous tip. Kevin Easterling, Appellant’s accomplice in all of the burglaries, testified for the Commonwealth that he and Appellant targeted Caskey’s former residence precisely because they knew he was deceased and because they had heard a rumor that Caskey had hidden $250,000.00 in the residence before his death. (The bur*842glary failed to produce the rumored cache.)
There are no Kentucky cases directly on point. In Haynes v. Commonwealth, Ky., 657 S.W.2d 948 (1983), the owner of the burgled residence was deceased but the owner’s son had continued to reside in the residence on an intermittent basis. In a related case, however, we held in Bray v. Commonwealth, Ky., 68 S.W.3d 375 (2002), a defendant convicted of arson in the first degree, KRS 513.020, was entitled to an instruction on arson in the second degree, KRS 513.030, as a lesser included offense on evidence that the persons whose bodies were found in the burned residence were already deceased when the fire was set. Id. at 385. See also State v. Ward, 93 N.C.App. 682, 379 S.E.2d 251, 253-54 (1989) (arsoned mobile home was not a dwelling since owner-occupant had died two days before the fire was set).
The majority opinion primarily relies on State v. Edwards, 589 N.W.2d 807 (Minn.Ct.App.1999), and People v. Barney, 294 A.D.2d 811, 742 N.Y.S.2d 451 (N.Y.App.Div.2002). Though I disagree with results reached in those cases, each is factually distinguishable from the case sub judice. In Edwards, the occupant had been murdered and her body remained hidden in a closet during the five days the defendants used her residence as a “crack house.” The Minnesota Court of Appeals held that the residence retained its character as a “dwelling” because it had been used as a residence in the “immediate past” and had not been abandoned. 589 N.W.2d at 811. In Barney, the lodger had been dead two days but the utilities were still connected and there was food in the refrigerator, evidence that the residence was at least ready for habitation at the time of the burglary. No such evidence was introduced in this case. More importantly, there was no evidence that the defendant in Barney was aware that the owner-occupant of the residence was deceased so that his mens rea was no less than if the former resident had still been alive. Interestingly, the majority relies on the following test adopted in Barney:
In cases where an occupant is temporarily absent, a dwelling retains its character as such if the building was adapted for occupancy at the time of the wrongful entry, the occupant intended to return, and, on the date of the entry, a person could have occupied the building overnight.
Id. at 453 (emphasis added) (citations omitted). Obviously, Junior Caskey’s absence was not temporary and he could not have intended to return. Although there was evidence that his furniture had not been removed, no witness testified that the utilities were still connected or that the building was otherwise habitable.
In People v. Ramos, 52 Cal.App.4th 300, 60 Cal.Rptr.2d 523 (1997), the owner-occupant of the burgled residence had died of natural causes prior to the burglary and his dead body was found still in his bed by the burglar during the course of the burglary. The California Court of Appeal succinctly held that “a dead body is not using a house for a ‘dwelling’ and there is no way to say that a dead man is going to return or that he has an ‘intent’ of any kind.” Id. at 524. In People v. Hider, 135 Mich.App. 147, 351 N.W.2d 905 (1984), the owner had died the day before the burglary. Michigan’s burglary statute defined an “occupied dwelling house” as a building “habitually used as a place of abode.” Holding that the building was not a “dwelling house,” the Court stated:
Mrs. Clark’s house was not an “occupied dwelling house” at the time of the crime. Mrs. Clark’s absence can hardly be considered temporary and there was no evidence that anyone had shared her home *843and intended to either remain in it or to return to it after a temporary absence.
Id. at 908. The same holds true in the case sub judice.
Though Appellant could properly have been convicted of third-degree burglary under Count 15 of the indictment, he was improperly convicted of second-degree burglary. Accordingly, I dissent from the majority opinion insofar as it affirms that conviction.
KELLER, and STUMBO, JJ., join this opinion concurring in part and dissenting in part.