Coming home in the middle of a burglary
by: Ryan • December 1, 2013 • no comments
If we think of a conventional burglary, there probably isn't much scarier than being home when the burglars break in. A close second is coming home to a burglary still in progress.
The punishment for committing a burglary of an "occupied" dwelling is greater than that of an unoccupied dwelling for this very reason. The fear is greater, the sense of victimization is greater, and the potential for tragedy is greater.
Those of us who practice criminal law know, however, that many "occupied burglaries" aren't conventional burglaries. The night-time burglary of a stranger's residence, when the homeowners are home and asleep, is relatively rare. Burglars -- as opposed to robbers -- generally don't want confrontation.
Sometimes however, confrontation is unavoidable, including those times when the burglar is still burgling when the homeowner comes home. In that situation, most prosecutors would charge it as burglary of an occupied dwelling, even though the defendant had no knowledge or expectation that someone would be coming home early.
But it may not be an occupied burglary after all. In State v. JNS, the Court of Appeals explained the difference between entering a residence with the intent to commit a crime (one theory of burglary) and remaining in a residence when formulating the intent to commit a crime (the other theory of burglary). Without going into too much detail in this post, the theories are mutually exclusive. This is because the "remaining" theory of burglary requires the defendant to have entered the residence legally and to have developed the intent (and ordered to leave) sometime after crossing the threshold with permission.
The "entering" theory of a residential burglary, however, requires the defendant enter a dwelling unlawfully with the intent to commit a crime already formed when he crosses the threshold. That is, the entering theory requires a trespass the moment of entry. The remaining theory requires that there is no trespass when the defendant enters the residence.
In sum, if a defendant enters the residence with the criminal intent already formed, the burglary is complete once he enters. Moreover, it is impossible for him to commit the "remaining" theory of burglary, because that theory depends on him entering the residence lawfully. So, like I said, mutually exclusive theories.
The question becomes, if the dwelling becomes occupied only after the defendant has crossed the threshold, is it accurate to say -- as the enhancement factor requires -- that the burglary "occurred in an occupied dwelling." It wasn't occupied when all the element of burglary occurred. The state could have theoretically gotten around this problem under the general misunderstanding of the "remaining" theory -- the idea being that burglar was unlawfully remaining when the dwelling became occupied. But again, we now know that a defendant who enters unlawfully cannot be guilty of the "remaining" theory of burglary.
Ergo, if the residence is unoccupied when the burglar crosses the threshold and the burglary is complete, then the burglary isn't of an occupied dwelling, regardless of what happens later. We win, right?
Not necessarily. There is a legal difference between when a crime is complete and when it is over. The latter can last much longer than the former. There's a kidnapping case from this year which explains the difference in the context of kidnapping. How it would play out in the context of a burglary of an (un)occupied dwelling, I don't know. I don't have the issue at the moment but I imagine somebody out there does. Good luck!
