Breaking and Entering and Burglary

Whether on the news, in a crime show, or during conversations, you have likely heard the terms “breaking and entering” and “burglary.” What you may not know, however, is the difference between the two under the eyes of North Carolina law. There are two types of charges that may result from breaking into another’s home - breaking and entering (B&E) and burglary. While many states across the country have created modern law to address burglary, North Carolina uses the common law definition of this crime. Although it is true that burglary is a type of breaking and entering charge, it differs from a general B&E charge in that burglary requires that the illegal entry is into a dwelling (or a place where someone lives) and is committed with the intent to commit larceny (i.e., theft) or any felony crime.

Under North Carolina law, wrongfully breaking and entering a building is classified as a Class 1 misdemeanor. Additionally, breaking and entering a building with the intention of terrorizing or injuring one of its occupants or committing a theft or any felony is considered a Class H felony. The building can be a dwelling, uninhabited home, a building that is under construction, or any other structure that is designed to secure property within it. While they may sound similar, breaking and entering charges are different from trespassing charges. Trespass charges generally involve someone’s illegal presence on another’s land.

North Carolina divides burglary charges into first and second degree. Burglary involves breaking and entering into another’s dwelling with the intent to commit larceny or any other felony. Burglary in the first degree, a Class D felony, happens when the crime occurs in a building that is physically inhabited at the time of the burglary. On the other hand, if at the time of the burglary the building is not physically inhabited, it is considered burglary in the second degree and is a Class G felony. The state’s habitual offender statutes raise the burglary charges to a Class E felony if the accused has a prior conviction for breaking and entering.

Notably, a person can be charged for breaking in and separately charged for breaking out. In fact, it is a Class D felony to break out of a building in which someone lives after committing a theft or felony inside the property during the nighttime. In short, a person may face multiple charges for the same completed burglary.

A trespass, usually using force, is required by definition in order to meet the elements of a burglary in Monroe Union County. U.S. law views a person’s right to their home an important property right and, therefore, affords it much deference. For this reason, Monroe Union County and the rest of North Carolina implicates several self-defense issues within the crime of burglary that other property crimes do not consider.

A home’s lawful occupant may use defensive force that is likely to cause serious bodily harm or death to an intruder who was in the process of illegally and forcibly entering the occupant’s home. There is a legal presumption that the occupant acting in self-defense had a reasonable fear of death or serious bodily injury would be caused to themselves or another. In short, a person may use deadly force in self-defense against an intruder breaking into his or her home and use this legal defense in court. Of note, the presumption of reasonable fear of death or serious bodily injury to oneself or another is rebuttable. This means the use of this legal defense is permissible on a case-by-case basis. Some examples in which the legal defense of self defense is not allowable includes when deadly force is used against:

• A legal occupant of the home;
• A law enforcement officer performing his or her official duties who identifies him or herself;
• A bail bondsman performing his or her official duties who identifies him or herself; and
• An intruder who has stopped all attempts to forcefully enter the home and has left the home;

Also, if the person asserting self-defense is engaged in a criminal activity of his or her own when using deadly force and the crime involves the use or threat of physical force, then this defense is not allowable.

State prosecutors bear the burden of proving the guilt of the person accused of a burglary charge -- or even a breaking and entering charge -- beyond a reasonable doubt in order to successful get a conviction from a jury. Legal defenses help make it more difficult for state prosecutors to build a case against you. Some other defenses that may be used include that you:

• Entered the home with permission;
• Did not have the intent to commit a crime (for defeating a burglary charge);
• Entered the home mistakenly; and
• Have been falsely identified or accused.

Moreover, if law enforcement gathers information on your case in violation of your rights, such as an unlawful arrest or an illegal search and seizure, a skilled attorney will fight to have this evidence suppressed, or kept out of your case. This is because it is more difficult for the state to obtain a conviction if it lacks physical evidence to support its case, resulting in a higher likelihood of the charges being reduced or even completely dropped.

Breaking and entering as well as burglary charges are serious crimes in the state of North Carolina. If you or someone you know has been arrested and/or is facing criminal charges, contact an experienced criminal defense attorney right away. The skilled attorneys at Arnold & Smith, PLLC are familiar with local laws and procedures. Contact us today to request your free, initial, case evaluation.