We have a guy indicted for Arson/Habitation and after reading case law the indictment will have to be amended where the house is abandoned and we can't prove habitation. What to amend it to...

The first thought was to amend the indictment to Arson/Building but the 28.01 definition of building reads "any structure or enclosure INTENDED for use or occupation as a habitation..." My question is with the word "intended" in this statute. As of now, it does not seem like the owner has any intent of letting this house out or living in it - it appears he just happens to own the property and doesn't care about it in the least. Does the term "intended" mean the intended use of the building when/how it was built or the intent of the owner to use or occupy it in the future? Are we stuck with criminal mischief? I can't find much case law on abandoned buildings - any thoughts will help tremendously. Thanks

I think that would be a question of fact for the jury. Common sense (!) tells me that a house is intended for use as a habitation, regardless of who owns it. But if you want to be certain you have enough evidence, you could check to see if there are zoning restrictions that require the use of the structure as a habitation and not a business. Just a thought.