1. Chapter 12 Burglary, Trespass, Arson, and Mischief

2. Introduction
Four offenses developed to protect an individual’s dwelling (and later on, vehicles):
Burglary
Trespass
Arson
Malicious Mischief

3. Burglary
Burglary at common law—breaking and entering of the dwelling of another at night with the intent to commit a felony
The crime of burglary protects several interests:
Home
Safety
Escalation

4. Burglary: Breaking An act that penetrates the structure.
Common law requires a “breaking” to enter the home by a trespasser (individual who enters not given owner’s consent).
Most state statutes no longer require a breaking; typically defined as an unlawful or uninvited entry.

5. Burglary: Entering
Entry requires only that a portion of an individual’s body enters the dwelling.
Breaking must be the means of entering.
The entry for a burglary must be trespassory, without consent.
The essence of burglary is the unlawful interference with the right to habitation of another.

6. Burglary: Dwelling House
A structure regularly used to sleep.
Common law limited burglary to a dwelling house.
A dwelling at common law included the curtilage—the land & buildings surrounding the dwelling.
Most statutes no longer limit burglaries to dwelling houses & typically categorize the burglary of a dwelling as an aggravated burglary.

7. Burglary: Dwelling of Another
Who resides in the home rather than who owns it indicates whether the dwelling is “of another.”
Generally, one cannot burglarize a dwelling that he/she shares with another.

8. Burglary: Nighttime
Central requirement of common law burglary is that the crime is committed at night (6pm until 9am).
State statutes no longer require nighttime burglary; but a breaking & entering during the evening is considered a form of aggravated burglary & punished more severely.
Nighttime is typically defined in state statutes as sunset to sunrise.

9. Burglary: Intent
Common law required that individuals possess an intent to commit a felony within the dwelling at the time that they enter the building; intent must be concurrent with the entry.
Statutes have adopted various approaches to the intent requirement (e.g., intent to commit a crime; intent to commit any felony or misdemeanor theft).

10. Aggravated Burglary
Aggravated first-degree burglary statutes usually list various circumstances for enhanced punishment (e.g., possession of weapon; infliction of injury; nighttime).
Second-degree burglary statutes may include the burglary of a dwelling, store, car, truck, or railroad car.
The least serious degree of burglary typically involves entry with the intent to commit a misdemeanor or nonviolent felony.

11. Burglary: Issues & Need For
Most states prohibit possession of burglary tools.
Burglary is a distinct offense & does not merge into the underlying offense.
Burglary statutes recognize a distinction in the degree of fear, terror, & potential for violence resulting from an assault or theft in the home as opposed to a similar offense in public.
Bruce v. Commonwealth (1996)
Hit v. Commonwealth (2004)

14. 12.1. You Decide: Sandoval
Sandoval was convicted for burglary under Washington state’s statute. Would you have convicted him according to the requirements of that statute?
The appellate court reversed Sandoval’s conviction. Do you agree or disagree with this ruling? Why?

16. Trespass
Criminal trespass is the unauthorized entry or remaining on the land or premises of another.
Actus reus: entering or remaining on another person’s property without his/her permission.
Defiant trespass occurs when an individual knowingly enters or remains on the premises after receiving a clear notice that he/she is trespassing.

17. Trespass (cont.) State statutes differ on the mens rea requirement:
Knowingly
Purpose
Strict liability
First-degree: entering/remaining in the dwelling of another (minor felony).
Second-degree: entering/remaining in enclosed buildings or fenced in property (misdemeanor)
Third-degree: entering/remaining on enclosed land (petty misdemeanor)

18. Trespass (cont.)
Computer trespassing occurs when one “intentionally & without authorization” accesses a computer, computer system, or network with the intent to delete, damage, destroy or disrupt a computer, computer system, or network.”
State statutes vary in the language & requirements of this offense.

21. Arson
Common law arson is the willful & malicious burning of the dwelling house of another.
Purpose is to protect the home along with the occupants & their possessions.
Common law arson has been significantly modified by state statutes.

22. Arson: Burning
Common law requires a burning– the “consuming of the material” of the house or the “burning of any part of the house.”
State statutes & courts broadly interpret arson statutes & find that smoke damage & soot are sufficient (need not be an actual burning).

23. Arson: Dwelling Common law limited arson to dwellings.
The definition of dwelling extends to all structures within the curtilage.
Statutes no longer limit arson to dwellings—can include real property, personal property.
Aggravated arson is directed against injury to individuals resulting from the arson.
So, arson is no longer an offense that only protects the home.

24. Arson: Dwelling of Another
Common law required a burned dwelling occupied by another individual.
Central issue again is occupancy rather than ownership.
Modern statutes eliminate the requirement that arson must be directed at the dwelling “of another.”

25. Arson: Willful & Malicious
The mens rea of common law arson is malice.
Malice entails either a purpose to burn or a knowledge that the structure would burn or the creation of an obvious fire hazard that, without justification or excuse, damages a dwelling.
Statutes typically retain the common law intent standard & separate statutes punish a reckless burning.
Additional statutes directed at burning by an individual with the specific intent to defraud an insurance company.

26. Arson: Grading
State statutes typically distinguish between arson & aggravated arson.
Some states provide additional categories.
Most common arson grading:
Arson
Aggravated arson
Reckless burning
Williams v. State (1992)
People v. Fox (2004)

29. 12.2. You Decide: Buckley
Was George killed during the course of a felony?
If so, then the felony murder rule can be appropriately applied to the person who committed the arson, correct?
Do you agree with Buckley’s conviction of felony murder? If so, why?
If not, would you reverse her conviction? On what grounds?

30. Criminal Mischief
The common law misdemeanor of malicious mischief is the destruction of, or damage to, the personal property of another.
The MPC terms this offense criminal mischief.
Modern criminal mischief statutes provide for damage to both personal & real tangible property.
Under most statutes this offense is a minor felony & punishment corresponds to the dollar amount of damage.

31. Criminal Mischief: Actus Reus
MPC specifies three types of acts that comprise this offense:
Destruction or damage to tangible property
Tampering with tangible property so as to endanger a person or property
Deception or threat causing financial loss

32. Criminal Mischief: Mens Rea
The Model Penal Code requires that these acts should be committed purposely or recklessly.
Damage to property by “catastrophic means” (explosion; flood) may be committed negligently.
People v. Wallace (2004)

35. 12.3. You Decide: Hurricane Katrina
Would you charge the looters during Hurricane Katrina with any of the following offenses: criminal mischief, trespass, burglary? Why or why not?
Do you think individuals charged with any of the kinds of offenses related to the disaster could legally rely on the necessity defense?
What about Maten’s example? How would you rule in her case?

36. Key Issues Burglary Trespass Arson Criminal Mischief
Elements, need for the crime of burglary
Trespass
Elements, types, degrees of seriousness
Arson
Elements
Criminal Mischief
Elements, types