dissenting: I respectfully dissent from the majority’s holding that an unfinished building in which the doors and windows have yet to be installed is nevertheless, as a matter of law, a “building” for purposes of the crime of burglary, under K.S.A. 21-3715(b).
First, I would not rely on the decisions from other states which construe their own peculiar statutes and prior case law, in light of our own prior decision in State v. Moler, 269 Kan. 362, 2 P.3d 773 (2000), construing the Kansas burglary statute. I perceive that Moler construed our statute to focus on the level of security against theft which a structure provides in determining whether it is sus*17ceptible to a burglary. However, if one were to apply the reasoning from the foreign opinions quoted by the majority and were to adopt the majority’s reliance on our statute’s use of the term “any” building, one might arguably reach a different result than did Moler with respect to a three-sided shed. Therefore, without overruling the holding in Moler and analyzing the current case with a clean slate, I would find the decisions from other states to be unpersuasive.
The majority cites to the Court of Appeals’ attempt to distinguish Moler whereby that court found a compelling difference between interpreting what is an “other structure” versus interpreting what is a “building” as those terms are used in the burglary statute. However, as the majority notes, Moler was referring to all of the enumerated items in the burglary statute, which would include a “building,” when it declared that the listed items were “intended to present a barrier to entry, which in turn provide an enclosed space for the security of persons or property which may be contained therein.” 269 Kan. at 369. Therefore, I find the Court of Appeals’ attempt to distinguish Moler to be ineffectual.
The majority in our opinion relies on the distinction that the three-sided shed in Moler was complete and would never be capable of providing security for persons or property, whereas the unfinished medical center building in this case was designed for and was intended to be capable of providing such security when completed. However, at the time of the theft, the unfinished structure did not present a barrier to entiy or provide security for the property contained therein. That point may be best illustrated by the fact that the band saw’s owner apparently deemed it prudent to keep the property in a locked box, rather than to rely on the “security” of the structure.
Carried to the extreme, the majority’s designed or intended use touchstone could mean that the pouring of a concrete floor would be sufficient to make all property left on top of that floor amenable to a burglary, so long as the building, when completed, will in the future allow for the securing of properly. I do not believe that to be the intent of the burglary statute or the spirit of the reasoning in Moler. Rather, I would suggest that a structure under construe*18tion must have progressed to the point where it is objectively reasonable for a property owner to believe that the structure will provide security for any property left on the premises. In that vein, I would submit that a rational person would not expect a floor, four walls, and a roof, without doors or windows having been installed, to provide any reasonable security against the theft of properly contained therein.
Additionally, I disagree with the Court of Appeals’ statutoiy interpretation. Specifically, I perceive that it fails to grasp the significance of K.S.A. 21-3110(7), defining a dwelling as “a building or portion thereof, a tent, a vehicle or other enclosed space.” (Emphasis added.) The operative word in that definition is “other,” which connotes that all the items listed prior to the phrase “or other enclosed space” are deemed to be enclosed spaces. The Court of Appeals disregarded that definition because we are not dealing with a dwelling in this case.
However, the point is that the legislature obviously considered the term “building” to mean an enclosed space for purposes of K.S.A. 21-3715(a). The language of K.S.A. 21-3715(b) is identical to subsection (a), except that “is a dwelling” is replaced with “is not a dwelling.” To say that the legislature intended the meaning of “building” to be different in these two nearly identically worded sections of the same statute strikes me as contrived, counterintuitive, and contrary to our well-founded maxim that criminal statutes are to be construed in favor of the person against whom they are being applied. See State v. Snow, 282 Kan. 323, 340, 144 P.3d 729 (2006) (criminal statutes must be strictly construed in favor of the accused with any reasonable doubt as to the meaning of the statute decided in favor of the accused). Thus, I would find that the term “building” means an enclosed space for purposes of the burglary of a nondwelling, as well as a dwelling.