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D entered an apartment leased by David and Debbie Gardner with the intent, later consummated, to abscond with certain valuables. D was charged with burglary. D called one of the cotenants, David Gardner, to the stand. Gardner testified that prior to the incident he had given the D blanket permission to enter his apartment at any time. On cross-examination, Gardner allowed that he had not given D permission to remove any property from the apartment. D asked for an instruction regarding license or privilege to enter. “The judge instructed the jury that D knew that he was not licensed and privileged -- or privileged to do so with the intent to commit this crime of theft which I have defined to you. Was that a license? Was it a privilege? Was it a qualified license or privilege? It's for you to say what was in the mutual contemplation of the parties when permission to enter was given by Mr. Gardner. There is no dispute that Mr. Gardner, himself, says, I never gave him consent to steal or to rip off the apartment, so the facts are not much in dispute. Therefore, you must decide whether or not from all the testimony, from all the facts, and under the law which I have given to you, whether or not D, in whatever condition he was, knew that he was not licensed or privileged when he went in those premises to commit the crime of theft.” D objected. D was convicted and appealed. D argues that a person cannot validly be convicted of burglary if the individual rightfully in possession has given that person permission to enter the structure.

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