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Burglary is the “entering” of a vehicle or structure with the intent to commit a crime once inside.  One can complete a burglary even if invited into the structure and need not actually complete the crime to be convicted of burglary; one only needs the intent to commit a crime. 

Entry is completed if any part of one’s body, or any tool under the control of that person, enters a structure or vehicle.  For example, if someone just reaches into a window of a house and intends to steal something that is within reach, a burglary has been completed.  Another example would be if a person used a wire hanger to open a car door lock and had the intent to steal that car.  The wire hanger entering is when the elements of burglary have been satisfied.  

The intent to commit a crime must be formed before or at the time of entry into the structure.   If someone walks into a store, knows they only have $5 on them and grabs a $50 item and walks out, that is sufficient to constitute a burglary.  However, if someone walked into a store intending to buy the $50 item and realized after they were in the store that they only had $5, then decides to steal the item, it is merely theft, not burglary.  An example of an entry which is not a burglary would be a homeless man who enters a dwelling with the intent to sleep in it; this would only be a trespass. 

The intent for burglary need not be for theft but can be for any crime.  If someone enters someone’s house intending to assault that person, this is sufficient to constitute a burglary even if invited in by that person. 

One defense to burglary would be consent by the victim.  For example, if defendant is invited in to a house by victim to break his television set with a baseball bat, and victim gave permission to break his television set, no burglary would have occurred.  In order to satisfy the defense of consent, it must be shown that the invitee allowed the person to enter and knew of the criminal intent of the defendant. 

One cannot burglarize their own home so long as they still have an unconditional possessory interest.  If a spouse is locked out of their house because their partner found them to be cheating, breaking the window to then get in to retrieve their own belongings would not be burglary.  However, if that spouse has a restraining order against them because their partner obtained one, that spouse no longer has a full unconditional possessory interest and therefore can be found to be a burglar.

Another defense would be mistake of fact.  If someone stumbles home in a drunken stupor, breaks into what they think to be their own house and takes the television to sell it so they can go buy more alcohol, they have not committed a burglary.  However, this would be a difficult defense to establish considering the facts themselves; anyone who does not enter a house with keys is going to question that they were mistaken in fact about it being their own house.

Elements and crimes vary from state to state and within the federal system.  If you or someone you know is charged with any crime, as always, you should consult a local attorney, licensed to practice in your jurisdiction and preferably one practicing only criminal law.  You can always look for your local criminal attorney at or contact your state Bar association.

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