Chapter 12
Burglary, Trespass, Arson,
and Mischief
Introduction
Four offenses developed to protect an
individual’s dwelling (and later on, vehicles):
Burglary
Trespass
Arson
Malicious Mischief
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
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.
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.
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.
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.
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.
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).
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.
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)
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?
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.
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)
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.
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.
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).
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.
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.”
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.
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)
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?
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.
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
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)
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?
Key Issues
Burglary
Elements, need for the crime of burglary
Trespass
Elements, types, degrees of seriousness
Arson
Elements
Criminal Mischief
Elements, types