Breaking and entering into a building with intent is a serious criminal offense in Michigan. A person convicted of breaking into a non-dwelling structure with the mindset of committing additional crimes once inside will face serious jail or prison time.
MCL 750.110 provides “[a] person who breaks and enters, with intent to commit a felony or a larceny therein, a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car is guilty of a felony punishable by imprisonment for not more than 10 years.”
A person is guilty of breaking and entering with intent, contrary to MCL 750.110, if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 25.1):
- First, that the individual broke into a building. It does not matter whether anything was actually broken; however, some force must have been used. Opening a door, raising a window, and taking off a screen are all examples of enough force to count as a breaking. Entering a building through an already open door or window without using any force does not count as a breaking.
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- The use of any force at all, including the opening of a partly opened door, is sufficient to constitute the element of breaking. People v White, 153 Mich 617; 117 NW 161 (1908).
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- The trier of fact can infer whether there has been a breaking, including whether or not a door was left open. In People v Wise, 134 Mich App 82; 351 NW2d 255 (1984), the Michigan Court of Appeals found a conviction for breaking and entering was sustained where, “[a]lthough the victims might possibly have left the door to their house open,… [i]t is highly unlikely that a person living in Detroit in the Six Mile-Conner area in 1981 would not at least have closed the doors before retiring to bed.” Id at 88. Therefore, the court can reasonably infer under these facts that the door was closed and the defendant opened it to enter the home, which satisfies “breaking”.
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- Generally, there is no “breaking” if the defendant had the right to enter the building. People v Brownfield (After Remand), 216 Mich App 429, 432; 548 NW2d 248 (1996). However, if the basis for the breaking and entering is based on the defendant opening a door to a prohibited area inside the building that was open to the public (e.g. a storage room that was locked or marked “Keep Out”), then the element of breaking can be satisfied. People v Toole, 227 Mich App 656, 659-660; 576 NW2d 441 (1998).
- Second, that the individual entered the building. It does not matter whether the individual got his or her entire body inside. If the defendant put any part of his or her body into the building after the breaking, that is enough to count as an entry.
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- In People v. Gillman, 66 Mich App 419; 239 NW2d 396 (1976), the defendant tried to overturn his conviction for breaking and entering with intent to a sporting goods store by arguing insufficient evidence of entry because there were two wooden bars that were a barrier to entry in the store and the prosecutor can’t prove he penetrated it (there was other evidence of entry due to broken windows and glass). The Michigan Court of Appeals rejected this argument, stating that “[if] a defendant were to stick his arm through a space between two bars, this would constitute an entry.” Id at 430. Therefore, the bars cannot be a barrier to entry for the purposes of the defendant’s argument.
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- Breaking and entering with intent requires that the offender was in a building or structure that one can “physically enter into”. In People v Jacques, 456 Mich 352; 572 NW2d 195 (1998), the Michigan Supreme Court vacated a breaking and entering conviction where the defendant entered an outdoor enclosure by crawling under a fence. A fence is not a structure you can enter into, for you can on top of or below a fence or on either side, “but you can’t be ‘inside’ a fence.” Id at 358-359.
- Third, that when the individual broke and entered the building, he or she intended to commit a felony. The prosecutor must state the particular felony that the individual supposedly intended to commit therein with its own specific elements. People v Westerberg, 274 Mich 647; 265 NW 489 (1936).
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- Breaking and entering with intent is a specific intent crime because it requires the specific intent to commit a felony within the building or structure. As a result, voluntary intoxication may negate the element of the specific intent needed to commit the crime. People v Blankenship, 108 Mich App 794; 310 NW2d 880 (1981). However, a trier of fact can still infer intent despite intoxication based on how the defendant acted (for example, “while armed with a gun, did break and enter the home and did fire the weapon at the car of the victim”). People v Cannoy, 136 Mich App 451, 454; 357 NW2d 67 (1984).
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- The intent to commit a felony must exist at the time of the breaking and entering. People v Tilliard, 98 Mich App 17; 296 NW2d 180 (1980). A presumption of an intent to steal does not arise solely from proof of a breaking and entering. People v Palmer, 42 Mich App 549, 552; 202 NW2d 536 (1972). The Michigan Court of Appeals found it insufficient to sustain a conviction for breaking and entering with intent where the defendant did break and enter into a house but was found later by police rummaging through a dumpster. People v Uhl, 169 Mich App 217, 425 NW2d 519 (1988). The Court of Appeals did “not believe that rummaging through the dumpster after the breaking and entering indicated that defendant had larcenous intent at the time of the breaking and entering.” Id at 221.
The elements of breaking and entering with intent turn on very specific facts which can mean the difference between guilt and acquittal. Even if the prosecutor is lacking on one or more elements, you can still be charged with a lesser crime.
- ENTERING WITHOUT BREAKING WITH INTENT: “Any person who, without breaking, enters any dwelling, house, tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, boat, ship, shipping container, railroad car or structure used or kept for public or private use, or any private apartment therein, with intent to commit a felony or any larceny therein, is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $2,500.00.” MCL 750.111.
- ILLEGAL ENTRY: “Any person who breaks and enters or enters without breaking, any dwelling, house, tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, boat, ship, railroad car or structure used or kept for public or private use, or any private apartment therein, or any cottage, clubhouse, boat house, hunting or fishing lodge, garage or the out-buildings belonging thereto, any ice shanty with a value of $100.00 or more, or any other structure, whether occupied or unoccupied, without first obtaining permission to enter from the owner or occupant, agent, or person having immediate control thereof, is guilty of a misdemeanor” punishable by a fine up to $500.00 of up to 90 days in jail, or both. MCL 750.115(1).
There are many defenses to breaking and entering with intent that can be asserted by a skilled criminal defense lawyer to beat the charges, provided that the facts support the claim:
- CONSENT – If the owner of the premises consented to the defendant’s presence on the property (or it was open to the public), then the elements of breaking or entering can be negated. However, the defendant cannot exceed the limits of the owner’s permission (e.g. specifically prohibited from entering certain rooms).
- MISTAKE – It may be a defense to breaking and entering if the defendant mistakenly believed he was entering his own property, which may also negate the intent to commit a felony element if the defendant believed he was getting his own property.
- ALIBI OR MISTAKEN IDENTITY – The defendant may assert that he was in another location at the date and time that the breaking and entering occurred, provided that there are sufficient witnesses and proper notice to the prosecutor to establish the alibi.
- LACK OF INTENT TO COMMIT A FELONY – The prosecutor may be unable to prove that the defendant, although having entered the premises, intended to commit a crime therein due to evidence of intoxication by alcohol or drugs, mistake of fact or mental impairment.
- DURESS, COERCION OR INDUCEMENT BY ANOTHER – If you were forced or manipulated into breaking and entering property due to the influence of another person, then you may have a defense due to lack of mindset to commit a crime.
A charge of breaking and entering with intent should not be taken lightly. Judges will hand out stiff penalties for these convictions that include a lengthy stay in state prison. You only get one opportunity to properly defend your case and assert all of the defenses available at law, so you need the best legal defense in your corner from the very beginning.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
