Burglary Charges. No Theft Needed: Definitions, Sentences and Defenses

When you think of burglary, you normally think of someone breaking into a structure and stealing stuff from inside and that’s the most common fact pattern that leads to these charges. But a lot of people don’t understand that theft is not an element of the crime.

Elements of Burglary

To get a conviction, the prosecutor needs to prove that the defendant:

  • Entered a structure
  • Knowing they were not allowed in
  • And that, at the time they enter, they have the intent to commit a crime inside.

Burglary can also be charged in the much rarer case where a person enters a place legally but then hides there (the law calls it “surreptitiously remains”) and waits to commit a crime. The state must prove that at the time they hid they had the intent to commit a crime. You can see the full statute here.

Class of Crime and Possible Sentences

If the structure is a residence, Burglary is a class B felony and has a 10 year maximum sentence. If the structure is a garage or some other non-residential building, Burglary is a Class C felony with a 5 year maximum sentence. In either case, probation can be part of the sentence.

These Charges, especially Residential Burglary Cases, are often sentenced quite harshly, there is something about invading the a private home that really irritates judges in Maine. Also, burglary is rarely charged alone and there is often another count of Theft, or Criminal Mischief (damage to property, like a window). These offenses can be charged as misdemeanors or felonies depending on the value of the property taken or the damage done.

Burglary Defenses

Since so much of the Burglary charge rests on proving what was in the defendant’s mind at the time they entered a building, there are often some good defenses. Remember, the State must prove that a person:

  • Entered, knowing they were not allowed in. A person might return to a place they have been before thinking they were allowed back, they might return to an old apartment that they still have the key to, they might be invited in by one resident and told not to come by another, they might enter an apparently abandoned structure with open doors and windows. In each case, there is a real factual dispute as to whether the person was in fact prohibited from entering and whether they knew they could not enter.
  • Entered with the Intent to Commit a Crime. Even when someone enters without permission, it might be hard to prove whether they had the intent to commit a crime when they entered. There is always the defense that no crime occurred inside, and so none was intended at the time of entry. For instance, in Burglary and Assault cases, if the defendant enters without permission, but with no intent to fight, and then acts only in self defense, they should be found not guilty of the assault and of burglary. Maybe the person entered idea illegally but the idea for the crime arose only after getting inside, in these cases, the lesser crime of Aggravated Criminal Trespass should be charged.

There is room for defense and negotiation even is cases that look clearcut. The sentences can be extreme. It is worth consulting with a lawyer before making an important decision about how to proceed.

Burglary Charges. No Theft Needed: Definitions, Sentences and Defenses by
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