Here’s a hypothetical situation that actually comes up with some frequency. Let’s say someone “breaks” into a house or business, without permission. That person is going in there to seek shelter from the elements or for a place to sleep. At some point after breaking in, the person decides to take something. Is this a First Degree Burglary (if its a dwelling) or a Second Degree Burglary (if a business)?
In practice, a case like this will almost always be charged as a First or Second Degree Burglary. The police usually draw up the charges to go after the most severe offense that the facts can support. But in this case, the facts indicate that, at worst, this is a Fourth Degree Burglary. There is a big difference–not only is this the difference between a felony and a misdemeanor, but it’s also a difference of a 15-20 year max compared to a 3 year max.
Why is this not a First or Second Degree Burglary? Based on the hypothetical facts there is both a “breaking and entering” and an “intent to commit theft.” However, the law requires that at the time the breaking and entering occurred, the perpetrator must have possessed the intent to commit theft. If the perpetrator commits a breaking and entering and then later forms an intent to commit theft, that is not a First or Second Degree Burglary. The intent to commit theft must have existed when the person broke in. Fourth Degree Burglary does not have this requirement.
To convict someone of a First or Second Degree Burglary the State must prove beyond a reasonable doubt that the intent to commit a theft existed right at the time the person broke and entered the structure. If the defense can show that a reasonable doubt exists as to this requirement, then the defendant must be found not guilty of that crime.