Burglary
A person commits the offense of burglary when he or she: (1) enters a habitation or a building that is not open to the public without the consent of an owner and with the intent to commit a felony or a theft; (2) remains hidden in a habitation or a building without the consent of the owner and with the intent to commit a felony or a theft; or (3) enters a habitation or a building without the consent of the owner and commits or attempts to commit a felony or a theft.
In order to convict a defendant under the first two methods of the offense of burglary, the prosecution must prove that the defendant had an intent to commit a felony or a theft at the time he or she entered or remained hidden in a habitation or a building. In order to convict a defendant under the third method of the offense, the prosecution only needs to prove that the defendant intentionally or knowingly entered the building without the owner's consent and that the defendant committed a felony or a theft while he or she was in the building. The prosecution does not need to prove that the defendant entered the building with an intent to commit the felony or the theft for the third method.
At common law, the offense of burglary was the breaking and entering of a building at night. Most states have enacted statutes that do not require the offense to be committed at night. However, the elements of breaking and entering a building at night may still be important to prove a defendant's unauthorized entry and the defendant's intent to commit a felony or a theft.
In order to convict a defendant of burglary, the defendant does not need to break into a building. The offense is committed when the defendant unlawfully enters the building, such as when the defendant enters an open door without an owner's consent. The defendant also commits the offense of burglary when he or she is permitted entry of the building and then enters a portion of the building without the owner's consent.
A defendant enters a habitation or a building when he or she places any part of his or her body into the habitation or the building. The defendant also enters the habitation or the building when he or she uses an instrument to gain access to the habitation or the building.
A defendant commits the offense of burglary, even if he or she does not enter a habitation or a building, when he or she conceals himself or herself in the habitation or the building with the intent to commit a felony or a theft. If the defendant is permitted entry to a building and the defendant remains in the building after the building is closed, the defendant is guilty of the offense of burglary. The defendant's intent to commit a felony or a theft may be inferred from the defendant's concealment of himself or herself in the habitation or the building.
Only an owner may consent to the entry of a habitation or a building by a defendant. An owner is anyone who has title to the property, possession of the property, or who has actual care, custody, and control of the property. An owner does not consent to the entry or the concealment of a defendant in a habitation or a building if the owner was forced or threatened, if the defendant knew that the person was not legally authorized to act on behalf of the owner, or if the owner was incapacitated because of his or her age, mental deficiency, or intoxication.
A "building" for purposes of the offense of burglary is any structure or enclosure that is intended for use as a habitation or as a trade or business. The building must be enclosed. An area that is fenced is not a building. The building must also be closed to the public at the time of the offense. However, a defendant commits the offense of burglary if he or she enters a building that is open to the public and then enters an area of the building that is not open to the public.
"habitation" for purposes of the offense of burglary is any structure or vehicle that is adapted for overnight accommodation. Factors for determining whether the structure or vehicle was adapted for overnight accommodation include the presence of bedding, furniture, or utilities. A habitation includes any structures that are appurtenant to or connected with the structure or the vehicle, such as garages and outbuildings. The structure does not need to be attached to the habitation.
In order to convict a defendant of the offense of burglary, the prosecution must also prove that the defendant intended to commit a felony or a theft or that the defendant possessed an intent to commit a felony or a theft. The intent to commit a felony or a theft must exist at the time of the defendant's entry into the building. The defendant does not need to actually commit the felony or the theft. The defendant's intent may be inferred from the defendant's unlawful entry into the building. Voluntary intoxication is not a defense to the offense of burglary.
Circumstantial evidence may be used to convict a defendant of burglary. Such circumstantial evidence may include the defendant's fingerprints or the defendant's possession of items that were stolen from a habitation or a building. However, the fingerprints must be made at the time of the burglary and not on any other occasion. Also, the defendant's possession of the stolen items must be recent and unexplained and the property that is in the possession of the defendant must be identical to the stolen property. The prosecution must also show the chain of custody of the property, that is, that the property was the same property that was identified by the owner and that was presented in court.
Where the evidence is insufficient to convict a defendant of burglary of a habitation, the defendant may nevertheless be convicted of burglary of a building. Burglary of a building is a lesser-included offense of burglary of a habitation. Criminal trespass is a lesser-included offense of burglary of a habitation or a building. The underlying felony or theft is not a lesser-included offense of burglary. The underlying felony or theft is a separate offense from the offense of burglary.
The offense of burglary is normally punished as a felony. The offense may be a first degree felony, that is, a more serious felony, if a defendant entered a habitation, if the defendant was armed, or if the defendant injured another person while he or she was attempting to enter the building, while he or she was in the building, or while he or she was fleeing from the building.
