(dissenting).
The trial court properly instructed on the current law and I vote to affirm.
Prior to 1989, SDCL 22-32-3 provided:
Any person who enters or remains in an occupied structure with intent to commit any crime therein under circumstances not amounting to first degree burglary, is guilty of second degree burglary. Second degree burglary is a Class 3 felony.
After this court’s decision in In re TJ.E., 426 N.W.2d 23 (S.D.1988) interpreting the word “remains” within the context of those facts * to mean “unlawfully remains,” the legislature amended SDCL 22-32-3 to provide as follows:
Any person who enters an occupied structure with intent to commit any crime other than the act of shoplifting or retail theft as described in chapter 22-30A constituting a misdemeanor, or remains in an occupied structure after forming the intent to commit any crime other than shoplifting as described in chapter 22-30A constituting a misdemeanor under circumstances not amounting to first degree burglary, is guilty of second degree burglary. Second degree burglary is a Class 3 felony. (Emphasis added.)
While the legislature could have amended SDCL 22-32-3 by inserting “unlawfully” in front of the word “remains”, it chose instead to exempt shoplifting and retail theft from crimes encompassed within the statute. This leads to only one conclusion. Under the statute, as amended by the legislature in 1989, as to all crimes, other than shoplifting and retail theft, if a person remains, lawfully or unlawfully, in an occupied structure after forming the intent to commit any crime, the person is guilty of second degree burglary. To interpret the statute in any other manner is in direct conflict with the obvious intent of the legislature and erroneous.
The purpose of the legislative branch is to enact the laws. The purpose of the judicial branch is to interpret and enforce the laws. It is important to refresh our memories occasionally, lest we forget. We should affirm the trial court and this conviction under SDCL 22-32-3 as presently enacted.
This court stated in In re TJ.E. that "[t]o interpret the word 'remains' in SDCL 22-32-3 to hold a person commits second degree burglary whenever he is present in an occupied structure with’ the intent to commit a crime therein would make every shoplifter a burglar." In re T.J.E., 426 N.W.2d at 24 (citation omitted).