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North Carolina Criminal Law 14-51: Burglary

1. Definition and Elements of the Crime

 Burglary The crime of burglary is a felony charge in North Carolina defined by statute. Burglary is also a traditional Common Law offense, as recognized under British Common Law.

North Carolina Criminal Law §14-51 sets forth burglary as unlawfully breaking and entering the dwelling house or sleeping apartment of another person at nighttime with the specific intent to commit a felony therein.

Mens rea or the “evil mind” is therefore an essential element of the offense. As such, the prosecutor must prove intent to commit a felony.

While often referred to as “breaking and entering" or “B&E,” there are technical differences between Burglary and breaking and entering.

Breaking and entering is defined as the breaking OR entering of ANY building with the intent to commit a felony or larceny in the building. Under the Common Law, Burglary normally involves a home, residence, apartment, or “dwelling house.”

Burglary is further delineated between First Degree Burglary and Second Degree Burglary.

For the crime to be charged as First Degree Burglary, the dwelling house or sleeping apartment has to be occupied by an individual at the time of the commission of the crime.

If the dwelling house or sleeping apartment is not occupied by an individual at the time the crime is committed or if the crime is committed in any house within the curtilage of the or in any building not a dwelling house, then the crime is to be charged as Second Degree Burglary.

To prove a charge of Burglary, the State must prove, Beyond a Reasonable Doubt, the following essential elements of the crime:

  1. That the Defendant broke and entered a dwelling house or sleeping apartment
  2. That the breaking and entering was during the nighttime
  3. That at the time of the breaking and entering the dwelling house or sleeping apartment was/was not occupied
  4. That the [owner] [tenant] did not consent to the breaking and entering
  5. That at the time of the breaking and entering the defendant intended to commit (name and define felony)
  6. Within the dwelling house or sleeping apartment.

Felonious breaking or entering differs from burglary in that both a breaking and an entry are not necessary. Either a breaking or an entry is enough.

“Breaking” is a legal term of art. It does not necessarily require breaking a window or any physical damage to the real property. Breaking may include

Furthermore, the building that was involved need not have been a dwelling house or sleeping apartment, and the breaking or entry need not have been in the nighttime.

Non-felonious breaking or entering differs from felonious breaking or entering in that it need not be done with the intent to commit a felony, so long as the breaking or entering was wrongful, that is, without any claim of right.

“Breaking” means the making of some kind of opening, however slight, in the building. Merely going through an open window or door is not necessarily “breaking.” But opening a door or window, even if unlocked, is breaking. It is not required that destructive force be used.

“Entering” can be accomplished by the offender’s putting any part of his or her body into the building, even a finger.

Entry gained by fraud, trick, coercion, threat, or conspiracy constitutes “constructive breaking.”

“Dwelling” is a structure regularly used by a person or persons for sleeping.

“Of another” means that the property broken into or entered is legally possessed by a person other than the offender, even though that person may not own the property.

“Actually occupied” means that some person must be present somewhere inside the dwelling when the breaking and entering occurs.

“Nighttime” is the time after sunset and before sunrise when it is so dark that a man’s face cannot be identified except by artificial light or moonlight.

2. Examples
  1. Defendant enters through an unlocked window into the dwelling occupied by a couple. Defendant intends to tie both the husband and wife up and rob their house. Defendant gets spooked when he hears the husband walking down the stairs. Defendant flees out the back door. Defendant can be charged with First Degree Burglary. Defendant does not have to be successful in committing the felony in order to be charged with First Degree Burglary. Defendant’s mere intent is enough.
  2. Defendant enters a dwelling house by prying open a window in Mooresville, North Carolina. The dwelling house is occupied by a female. Defendant is charged with First Degree Burglary and attempted First Degree Rape. The Mooresville seek and later obtain a True Bill of Indictment for both Burglary and Rape. The only evidence adduced at trial is that the Defendant possessed burglary tools and was found within the residence. Those “burglary tools” include only a bag and a credit-card used to open the locking mechanism on the window. There is no confession or statement from the Defendant. The Defendant did not go into the sleeping area of the residence. Defendant had no weapons. Defendant possessed no rope or duct tape to secure the female sleeping within the residence. He was found in the kitchen of the home, eating leftovers out of the referigerator. As such, it would be difficult at best for the State to prove, Beyond a Reasonable Doubt, that Defendant had the intent to commit a rape or other form of sexual assault. With the Burglary tools, a jury of peers may infer that the Defendant intended to commit a larceny, stealing items from the Iredell County residence. A conviction of First Degree Burglary, based on the intent to commit a rape would not be likely. The fact a dwelling is occupied by a female is insufficient to prove that Defendant intended to commit rape or sexual battery. A conviction for First Degree Burglary, if the State can prove the intent to commit a felony larceny, may be possible.
Related Legal Issues
  1. North Carolina Criminal Law Chapter 14-1: Felonies and Misdemeanors Defined
  2. North Carolina Criminal Law 14-72(A): Felonious Larceny - Goods Worth More Than $1,000
  3. Burdens of Proof in Criminal Court and Civil Court in the Carolinas
  4. What is Probable Cause
  5. Can I Get My Charges Dismissed?
4. Defenses to Burglary

While Burglary is specifically set forth under the North Carolina General Statutes, traditional Common Law defenses may be available. Burglary, under the Common Law, is the unlawful breaking or entering a dwelling house, at night, with the purpose of committing a felony therein.

Common Law defenses may include, but are not limited to, things like:

  1. Consent
  2. Mistake
  3. Necessity

The Defendant can prove that he or she had consent to enter rom the owner or some other person entitled to possession. For example, if a person is given a key and is authorized to enter at any time, the person does not commit breaking or entering, even if he or she uses the key to enter and commit a felony.

The Defendant can prove his or innocence by showing his or her entry was for some non-felonious purpose.

5. Penalties

First Degree Burglary is a Class D felony punishable by a maximum period of in incarceration of 204 months. Second Degree Burglary is a Class G felony punishable by a maximum period of incarceration of 47 months. Felonious Breaking or Entering is a Class H felony punishable by a maximum period of incarceration of 36 months.

First Degree Burglary, even as a Prior Record Level 1 offender, mandates an active prison term in the North Carolina Department of Adult Corrections.

6. Criminal Defense for Burglary Charges in North Carolina

Burglary Charges If you have been charged with first degree burglary, second degree burglary or felonious breaking or entering, you need to contact an experienced North Carolina criminal attorney who can advise you of your rights and guide you through the court process.

The severity of the penalties for First Degree and Second Degree burglary are substantial. You are facing a potential lengthy active prison terms, especially for First Degree Burglary.

Any suspended term of punishment may include things like:

  1. Supervised Probation
  2. Intensive Probation
  3. Electronic House Arrest
  4. Community Service
  5. Costs of Court
  6. Fines
  7. Probation Supervision Fees

The Charlotte criminal defense lawyers at Powers Law Firm PA are advocates for justice, dedicated to helping clients through difficult times.

We are a Charlotte-metro law firm, which means we provide legal representation to people with criminal charges in Iredell County, Union County in Monroe, N.C., Rowan County in Salisbury, and the surrounding prosecutorial districts.

We are available for immediate consultation. Everything you tell our defense lawyers and legal support staff is kept confidential. That’s true even if you choose not to retain the firm for legal services.

For criminal charges in North Carolina we charge nothing for consultation. Call now to schedule your complementary consultation.

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