When you imagine burglary or home invasion, you may think of images from the movies: a black-garbed “cat burglar” sneaking up drainpipes and into an open window; or a masked gunman kicking your door in. But state laws include more than what we see on the big screen.
Each state has its own laws defining burglary, trespass, and other related offenses. And penalties vary according to the circumstances of the crime, as described below.
In Virginia, burglary is defined as breaking and entering into a private dwelling house at nighttime with the intent to commit a felony or any larceny (theft) therein. This crime closely mirrors the original definition of the crime, which we inherited from the common law of England.
Crimes committed in the daytime, in buildings other than dwellings, and offenses involving certain specified crimes (such as assault, battery, or murder), are called “statutory burglaries,” because they are original laws written by Virginia legislators, rather than versions of traditional English law. Statutory burglaries are described further below. (Va. Ann. Code § 18.2-89.)
And home invasion is not a separate crime from burglary or statutory burglary, but rather a specific name for a burglary (or statutory burglary) that occurs in a dwelling. Home invasion is punished as for burglary or statutory burglary, according to the underlying circumstances of the crime, as described below.
The three parts of the definition—unlawful entry of a dwelling, at nighttime, and intent to commit a felony or larceny inside— are known as the “elements” of the crime, and to be convicted of burglary, all elements must be proved beyond a reasonable doubt (or admitted to by the defendant). That is, the prosecutor must prove that the defendant actually entered the dwelling, entered at nighttime, and entered with the intent to commit a felony or any larceny inside. Without sufficient proof of each element, the prosecutor may secure a conviction for some other crime (such as trespass or attempted burglary), but not burglary.
And notice too that the intended crime (such as theft from the building) need not be completed; proof of entry and of the intent to commit a felony or any larceny inside are the only requirements for a conviction.
The first element of the crime of burglary—breaking and entering—requires that the defendant used some degree of force, and physically passed into the dwelling.
The breaking part of this element may be satisfied in two ways: actual or constructive. Actual breaking means what it sounds like: the defendant used force to get inside the dwelling. However, it may surprise you to learn that force may be slight; even opening an unlocked door or pushing a door further open satisfies the “breaking” part of this element.
Constructive breaking occurs when the defendant gained entry by threats, fraud, or conspiracy. For example, a defendant who threatened or lied to someone inside the house to get them to let the defendant in has constructively broken into the dwelling, so long as the threat or lie itself was what caused the person inside to let the defendant in. So when the Big Bad Wolf threatened to “huff and puff and blow your house down” if the pigs didn’t let him in, the Wolf was attempting a constructive breaking.
Entering can also be slight, as long as it follows a breaking. For example, someone who nudges a door open, and then reaches his arm into the house and grabs a purse sitting on a countertop near the door has satisfied both parts of this element.
The second element is nighttime entry, and means that the crime must have taken place after sunset and before sunrise.
The third element of burglary concerns the defendant’s state of mind at the time he or she entered the building. To be convicted of burglary, the defendant must have decided to commit a felony or larceny, and then entered the building or that purpose.
Burglary is usually a Class 3 felony, which incurs a fine of up to $100,000, up to 20 years in prison, or both. However, the offense increases to a Class 2 felony when the defendant was armed with a deadly weapon at the time of entry. (Va. Ann. Code § 18.2-89.)
Statutory burglary offenses were created to address crimes that did not fall into the traditional burglary definition, as described above.
They are broken into several categories, based on whether there was breaking and entry (or only unlawful entry), what time of the day or night the crime occurred, what kind of building was involved, and the crime that the defendant intended to commit once inside the building.
Murder, rape, robbery, or arson. A defendant who enters a dwelling without breaking at night time, or breaks and enters a dwelling (or enters and conceals himself in a dwelling) in the daytime with the intent to commit a murder, rape, robbery, or arson inside the house, is guilty of a Class 3 felony. The offense increases to a Class 2 felony if the defendant was armed with a deadly weapon at the time of entry.
Also included in this category are offenses involving a defendant who enters without breaking, at nighttime; or who breaks and enters (or enters and conceals himself) at any time of day or night; when the building is any permanently affixed realty (such as an office building, but not, for example, a tent), any ship or water vessel, a railroad car, or any motor vehicle that is used as a human dwelling (such as an RV or converted van); with the intent to commit a murder, rape, robbery, or arson inside the structure. Statutory burglary under these circumstances is also a Class 3 felony, increasing to a Class 2 felony if the defendant was armed with a deadly weapon at the time of entry. (Va. Ann. Code § 18.2-90.)
Larceny or any felony other than murder, rape, robbery, or arson. This category includes defendants who committed any of the acts mentioned in the section above (“Murder, rape, robbery, or arson”) with the intent to commit any larceny or any felony other than murder, rape, robbery, or arson.
The judge or jury may decide to impose either a prison term of at least one year (and up to 20 years) in prison; or either a fine of up to $2,500, up to one year in jail, or both. And if the defendant was armed with a deadly weapon at the time of entry, the offense increase to a Class 2 felony, which incurs a fine of up to $100,000, at least 20 years (and up to life) in prison, or both. (Va. Ann. Code § 18.2-91.)
Assault and battery. This category includes offenses where the intended crime was assault or battery, when the offense also has the elements of burglary (explained above in “Burglary”). It also includes offenses with the same elements described in the section above on statutory burglary with murder, rape, robbery, or arson as the intended crime, except that the intended crime was assault or battery.
The judge or jury may decide to impose either a prison term of at least one year (and up to 20 years) in prison; or either a fine of up to $2,500, up to one year in jail, or both. And if the defendant was armed with a deadly weapon at the time of entry the offense increase to a Class 2 felony, which incurs a fine of up to $100,000, at least 20 years (and up to life) in prison, or both. (Va. Ann. Code § 18.2-91.)
It is a Class 5 felony to possess any tools or implements with the intent to use them for a burglary. (Va. Ann. Code § 18.2-91.)
Unless you have express permission of the land owner, it is a Class 1 misdemeanor to fish, hunt, or trap on private property on which there are signs or other paint markers posted that prohibit these activities. (Va. Ann. Code § 18.2-132.)The offense in a Class 3 misdemeanor if the land is private, but without posted signs. (Va. Ann. Code § 18.2-134.)
If you have been charged with burglary, criminal trespass, or a related crime, or if you have questions about state laws, consult a qualified local criminal defense attorney. Only an attorney can review the unique facts of your situation, and advise you on how the law will apply to your case.