Utah Burglary Defense Attorney

Burglary Lawyer in Salt Lake City

Brent Smith and Associates are very knowledgeable Utah Burglary Attorneys.

Burglary is a serious crime in Utah. If you have been charged with Burglary, please call us 24/7 for a free consultation at 801-364-6454. Our attorneys are experienced with Burglary cases and will fight hard for you.

Most people think of a burglar as one who wears black clothing, and sneaks into a person’s house at night to steal their jewels.

However, the Utah Code¹ says "[a] person is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit a felony or theft or commit an assault on any person."

Burglary is a second degree felony, which means a burglar can be punished in the Utah state prison for up to 15 years. And it can easily get worse. You see, if the "burglar" then commits an assault or a theft, the charged gets upped to a first degree felony, which means the burglary can be sent to prison for life.

So imagine this scenario: Laticia, an African-American, has just got her baby asleep at 1AM in the morning. Mark, a thoughtless jerk, is playing his stereo very loudly in the apartment directly above hers. So, she calls him, and politely asks him to turn down the stereo.

Mark calls here a f****** c***, and a n*****, then hangs up on her. Laticia breaks down into tears, and tells her husband, Steve, who is utterly outraged. Steve feels that Mark needs a lesson in manners, so he goes upstairs, and rings Mark’s doorbell. When Mark answers the door, Steve gives Mark a "bitch slap" through the doorway, and warns Mark that if Mark ever disrespects his woman like that again, Mark will be a dead man.

Mark calls the police. The police interview Steve, and Steve admits to what he did – and says that Mark clearly had it coming. Steve gets charged with a FIRST DEGREE AGGRAVATED BURGLARY, and Mark gets charged with nothing but disturbing the peace – a simple class C misdemeanor. About six weeks later, Mark takes a "plea in abeyance", and after six more months, the whole thing is totally dropped and behind Mark.

Steve, however, is still fighting for his life in the criminal court – and is facing up to life in prison. How could this be?

Well, again, the elements of burglary are: (1) the act of entering the building, with (2) the specific intent to commit a felony, theft, or assault. And if a felony, theft, or assault is then committed, the matter is made worse.

In the case of State v. Brooks, 631 P.2d 878, 881 (Utah 1981), the Utah Supreme Court said this: "The act of entering alone does not give rise to an inference that the actor entered with the requisite intent to constitute burglary." Brooks, 631 P.2d at 881. However, Steve admitted he went upstairs with the intent to slap Mark. Which is why Steve should have REMAINED SILENT!

You see, the Utah Supreme Court said this, too: "The intent to commit a felony, theft, or assault must be proved, or circumstances shown from which the intent may reasonably be inferred. It is the intent to commit a theft, and not the actual theft, which is material."

So, if Steve had remained silent, and the cops felt that Steve had merely gone into the home to talk to Mark, everything would be different for Steve. You see, if Steve simply lost his temper once inside, and then smacked Mark, Steve would only have been facing a simple Class B misdemeanor assault charge – because he did not enter with the intent to commit an assault.

Moral: if you want to kick somebody’s ass, do it on the sidewalk, not in their home. Of course, it’s better to simply keep your hands off other people in the first place.

It is arguably silly that so much depends on where the person was slapped. In other words, if Mark had met Steve on his porch, Steve would likely be looking at a mere misdemeanor – and would probably be offered a plea in abeyance if it were his first offense. But because Steve’s hand went into the home, Steve is now looking at a first degree felony.

So, two feet of space can make all the difference in the world. These types of technicalities can drive a person crazy. Talk about form over substance! If you don’t think a prosecutor would charge a man with aggravated burglary for such a petty thing, think again – even though most people would sympathize with Steve.

In one Utah case, a man was charged with burglary after he entered the home of his girlfriend, got into a fight with the girlfriend and her mother. During the event, the mother was cut on her hand. The defendant left the residence and the girlfriend locked the door. After he demanded to be allowed back into the house to collect his personal belongings, the person broke the door down and entered the home. See State v. Brown, 2009 UT App 285.

There is some good news. Burglary is "only" a felony of the third degree if it was not committed in a dwelling." Utah Code Ann. § 76-6-202(2) (2003). This can be tricky because a dwelling is defined as "a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present." Id. § 76-6-201(2) (2003).

So what is "usually occupied"? In State v. Cox, 826 P.2d 656 (Ut. Ct. App. 1992) the Court held that a cabin occupied less than fifty percent of the time, i.e. two or three nights a week, is a "dwelling" under the burglary statute. The Court reasoned that the term "usually occupied" refers not to the rate of occupancy of the building but rather to the purpose for which the structure is used. Id. at 662. Therefore "[i]f the structure is one in which people stay overnight, it falls within the definition of dwelling under the burglary statute."

A burglary is aggravated under Utah Code Ann. § 76-6-203 to a first degree felony if the actor or another participant causes bodily injury to another in the course of the burglary.

Bodily injury can be defined as "pain". So, even pinching – or spanking – a person, can get you into a ton of trouble.

If you have been charged with Burglary, please call us 24/7 for a free consultation at 801-364-6454.

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¹§ 76-6-202(1) (1999)