How Does “Remaining Unlawfully” Become A Burglary?
Interviewer: Is burglary the act of breaking into a dwelling, or is it the act of breaking in and taking items out?
Stuart: It is entering or remaining unlawfully with the intent to commit a crime. I may not have said that at the beginning. There are two elements. One, you can break in to somewhere, or you can remain unlawfully.
Remaining unlawfully is usually the story about the guy who hides in the stockroom until the store is closed. Then when everybody is gone, he comes out. He remained unlawfully.
But you have to enter or remain with the intent to commit a crime. That crime does not have to be a theft crime. For instance, you go to your ex-girlfriend’s house. You want to go there because she upset you and made your life miserable.
You are going there; but not to steal anything. You want to slap her around or punch out her new boyfriend, who you know is at her house. So you enter the house unlawfully.
Suppose you get in there through a window or you beat up this guy. Then you have actually committed a burglary even though no theft has taken place. That is because you entered unlawfully. You had the intent to commit a crime, and that is when you committed that crime.
The flipside is sometimes you can enter unlawfully but not intend to commit a crime. Then it is not a burglary. An example of that is a homeless guy or somebody who breaks into a church to sleep.
He sleeps there to get warm because it is winter. When he is leaving, he decides to steal from the collection plate, or to take a cup or something with him. But when he broke in, all he was trying to do was get warm.
He trespassed but he had no intent to do anything. Then while there, he happens to see the collection plate or something that he wants. That becomes a burglary.
Sometimes, there is a very fine line to say when they had that intent. Did they have it before they broke in? Or did they have it upon, or after they broke in?
Interviewer: Is trespassing the lighter form of burglary? It is an unlawful remaining or unlawful entry, without intent to do any crime.
Stuart: That is correct. It is one portion of the crime, entering or remaining unlawfully; but no intent to commit a crime or anything like that.
Interviewer: Is trespassing a misdemeanor or an infraction?
Stuart: It is actually both, depending. If you trespass on kind of open land and somebody is there, that is just a violation; not a crime.
If you trespass in an area that is either fenced or designed to preclude intruders, perhaps a building or just a fenced-in area, then it becomes a misdemeanor.