Beating the Rap in a Burglary Case

When most people hear about burglary, visions of the Hamburglar creep into their heads. These visions are inaccurate on several important levels.

First and foremost, the punishment for a Section 61-7-1 violation is much stiffer than writing sentences on a chalkboard. A first conviction could mean twenty years in prison, even if the defendant did not use a weapon. Additionally, most burglars are not strangers who wear racoon masks or shirts with black-and-white stripes. Typically, there’s an emotional relationship between defendant and alleged victim. A domestic dispute is a common background.

The relational aspect of most burglary offenses gives rise to several possible defenses which are outlined below. A Marietta criminal defense lawyer can leverage these defenses during settlement negotiations and/or at trial and successfully resolve these matters.

Lack of Evidence

Since the burden of proof is so high in a criminal case, lack of evidence is often the best defense in a burglary or any other criminal matter. Essentially, the state must prove that the defendant:

• Entered or remained “within the dwelling house of another or any [other] building,”
• Without the consent of the owner, and
• With the intent to commit theft or a felony.

Consent is usually an affirmative defense and lack of intent is rather complex. So, for now, let’s look at entering or remaining and the evidence needed to prove this element.

“Entering” means, well, entering. The defendant need not break down a door or pick a lock. “remaining” could mean staying after one has worn out one’s welcome. Or, it could mean exceeding the allowed level of access (e.g. coming over for dinner and breaking into a safe). In these situations, owners must expressly give and expressly revoke consent. We promise we’ll get to this point.

Direct evidence on this point usually includes eyewitness testimony or security camera footage. There could be issues in both areas.

Witness availability id often an issue in these cases, especially if a Marietta criminal defense lawyer is able to delay the trial. No one likes such delays. But putting off the trial date could deprive the state of a key bit of evidence. Many witnesses, including many alleged victims, lose interest in the case over time. Frequently, these individuals also relocate beyond the court’s subpoena range.

As for security camera footage, this evidence is not automatically admissible in court. The state must authenticate the footage and prove the camera was working at the time.

We mentioned the burden of proof above. This burden is beyond any reasonable doubt. That’s the highest standard of proof in Georgia law. Basically, if the jury has any doubt about the sufficiency of the evidence, they must resolve this doubt in the defendant’s favor.

Assume Sally’s house has outside security cameras. These cameras show Linus go to the door, go off-camera, and come back down the walkway a few minutes later.

Most likely, that evidence does not prove entering or remaining beyond a reasonable doubt. Linus could have gone to the door with the intent of breaking in, changed his mind, and left.

Consent

This defense arises much more frequently than people think. Once an owner authorizes entry, that authorization remains until the owner explicitly revokes it.

Assume Linus and Sally are married and they informally separate. Linus most likely says something like “Pack your stuff and leave.” He most likely does not say “Don’t come back.” He might change the locks or make some other changes. But such efforts do not amount to revocation of consent, at least beyond a reasonable doubt. There are many reasons, other than excluding Sally, for Linus to change the locks.

Furthermore, the defendant’s subjective, reasonable belief could be enough to invoke this defense. In the immortal words of Simon and Garfunkel, a man hears what he wants to hear and disregards the rest.

We mentioned that consent is an affirmative defense. This means that the defendant must admit s/he entered or remained with the intent to commit a felony or theft. Therefore, consent is an all-or-nothing defense. Depending on the strength of the other defenses in the case, arguing consent might or might not be a good idea.

Lack of Intent

The first two defenses involve the actus rea, or criminal act. Burglary, like most criminal cases, also has a mens rea, or mental element. A prosecutor must also establish the requisite intent beyond any reasonable doubt. Actions alone might or might not be sufficient to infer intent.

Property Recovery

To examine this defense, let’s go back to Linus and Sally. If Linus breaks into Sally’s house, which was once his house as well, to recover his personal property, he did not intend to steal anything or commit a felony.

Remember, Linus’ subjective yet reasonable belief could be sufficient. When marriages break up, property division is often complex. Linus and Sally could have different views about what is yours, mine, and ours.

This defense could be even more complex if Linus grabs his records as well as Sally’s records. Arguably, Linus did not intend to steal Sally’s records when he entered the residence without consent. This argument might or might not be sufficient to create reasonable doubt as to Linus’ intent.

Voluntary Intoxication

Burglary is a specific intent crime. The defendant must intend the conduct (unauthorized entry) and the result (committing a felony or theft). Other specific intent crimes include murder (striking and killing the victim), aggravated assault (striking and seriously injuring the victim), and bribery (an illegal gift and favorable treatment).

Alcohol affects brain functions. Higher reasoning, which many people have trouble with even when sober, is one of the first functions to go. In fact, as a matter of law, intoxicated people cannot mentally multitask in this way.

Evidence of intoxication includes physical symptoms, like unsteady balance or bloodshot eyes, and the defendant’s testimony about alcohol consumption.

No Felony or Theft

Assault and battery are among the most common domestic violence crimes. Neither one involves theft or a felony, at least in most cases. If Linus enters Sally’s home without permission with the intent to scare or hit her, Linus is not guilty of burglary in Georgia.

However, aggressive Cobb County prosecutors would almost certainly charge Linus with burglary given those facts.

If the evidence is weak in any way, a Marietta criminal defense attorney can usually get the charges reduced or arrange something like pretrial diversion. These outcomes do not include a conviction. Usually, this outcome is the best possible outcome under the circumstances. It achieves the desired result and avoids the risk of a trial.

Burglary charges do not always hold up in court. For a free consultation with an experienced criminal law attorney in Marietta, contact The Phillips Law Firm, LLC. Home, jail, and after-hours visits are available.