Burglary and Home Invasion in Las Vegas

    • Burglary and Home Invasion are both property crimes.
    • Not all burglaries result in harm to the occupants
    • According to a study, in 3.7 million burglary cases, only 7.2% of those involve violence. (Source: Bureau of Justice Statistics)
    • According to the Federal Bureau of Investigation, one burglary is committed in the United States every 14.4 seconds.

Burglary Requires Entry with the Intent to Commit Certain Enumerated Offenses

A person is guilty of burglary when they enter any house, room, apartment, building, vessel, vehicle, semitrailers, airplane etc. with the intent to commit grand or petit larceny, assault or battery on any person or any felony. NRS 205.060(1).

      • Breaking is no longer a requirement for burglary.
      • Further, the entry does not need to be a forcible entry, nor does the burglary need to occur at night.
      • Also, consent to the entry is not a defense to burglary if the person “acquired the entry with felonious intent.â€
      • Burglary by definition is rarely a standalone charge. At a minimum, the prosecutor will also charge someone with attempting to commit one of the enumerated offenses listed in the statute. For instance, many burglaries are the result of people committing theft NRS 205.0832(1) by entering a commercial establishment e,. pawn or jewellery store, gas station etc. by way of the fraudulent use of a credit or debit card NRS 205.760(1) or robbery NRS 200.380(1)

Rebuttable Presumption of Burglarious Intent

      • Intent can rarely be proven by direct evidence of a defendant’s state of mind, but instead is inferred by the jury from the individualized, external circumstances of the crime.
      • A jury is permitted to make a reasonable inference that someone committed a burglary unless the unlawful breaking and entering or unlawful entry is explained by evidence satisfactory to the jury to have been made without criminal intent. NRS 205.065
      • That is where entry isunlawful, a rebuttable presumption arises that the defendant had the requisite felonious intent 

A Person Cannot Burglarize Their Own Home

      • A person cannot commit burglary of a home when they have an absolute right to enter the home or has a possessory right of habitation e., as a tenant
      • The objective of the burglary statute is aimed at the danger caused by the “unauthorized entry itself†e., the danger to personal safety where the intruder will harm the occupants in attempting to perpetrate the intended crime.
      • In contrast to the usual burglary situation, no danger arises from the mere entry of a person into his own home, no matter what his intent is . . . no emotional distress is suffered, no panic is engendered, and no violence necessarily erupts merely because he walks into his house.â€
      • So a person who is renting an apartment with others does not commit burglary if he or she enters the apartment, even with the intent to commit a felony against a roommate, because that person has a possessory right in the lease of that apartment e., unless he or she had previously been evicted etc.
      • A landlord does not have an absolute right to enter a property he or she owns because the landlord conveys the right of possession to the tenant.

Enhancements and Related Offenses

      • Burglary while in the possession of a firearm or explosives enhances the underlying sentence making you ineligible for probation. NRS 205.080.
      • Possession of Burglary tools. Any person who owns a tool or machine that can be used for burglary, invasion of home, larceny, etc. could be guilty of gross misdemeanor if they were proven to have the intention of committing a crime.
      • It is not burglary to enter a commercial establishment during business hours with the intent to commit petit larceny unless the person has previously been convicted 2 or more times for committing petit larceny within the immediately preceding 7 years; or of a felony

Home Invasion is a General  Intent Crime

      • Home Invasion is a general intent crime which requires the “forcible entry into an “inhabited dwelling without permission of the owner, resident or lawful occupant.†NRS 205.067(1).
      • Home Invasion does not necessitate the showing of entry with a specific intent to commit a crime whereas burglary requires specific intent to commit grand or petit larceny, assault or battery on any person or any felony.
      • Also, the crime of home invasion necessarily requires forcible entry into an inhabited dwelling where burglary requires entry into a building, vehicle, or other enumerated location i.e., forcibly kicked open the door of residence without the owner’s permission.
      • Just as with Burglary, a person cannot commit a home invasion by forcibly entering his or her own home if that person is a lawful occupant or resident of the home.
      • A burglary can also become a home invasion once the burglar confronted a person within a residential structure.

Home Invasion in Relation to a TPO or Extended Protection Order

      • A district court may impose a sentence enhancement for a TPO violation when an individual commits a felony in violation of a TPO “against domestic violence issued pursuant to NRS 33.020.â€Â NRS 193.166(1)(a).
        • There is a specific statute that allows a Judge to issue a TPO against someone in custody for domestic violence. NRS 020(5)
        • The officer will contact the court via telephone and the alleged victim will describe specific facts demonstrating to the court’s satisfaction that an act of domestic violence has occurred.
        • Upon approval by the court, the signed order may be transmitted to the facility where the alleged perpetrator is in custody by electronic or telephonic transmission to a facsimile machine. If such an order is received by the facility holding the alleged perpetrator while the alleged perpetrator is still in custody, the order must be personally served by an authorized employee of the facility before the alleged perpetrator is released. The court shall mail a copy of each order issued pursuant to this subsection to the alleged victim named in the order and cause the original order to be filed with the court clerk on the first judicial day after it is issued.
        • The clerk of the court shall inform the protected party upon the successful transfer of information concerning the registration to the Central Repository for Nevada Records of Criminal History.
        • Any violation of this TPO is felony which carries 1- 20 years. If the crime committed by the person is punishable as a category A felony or category B felony, in addition to the term of imprisonment prescribed by statute for that crime, the person shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 5 years. NRS 193.166(1)(a).
      • The State only has to prove that the person received service of the TPO and that he or she wilfully violated the TPO. NRS 193.166(1)(a)
      • A party may not collaterally attack the validity of a TPO in a subsequent criminal proceeding based on violation of the TPO.
      • Nevada law provides a means for a party to challenge a TPO issued against him or her in the court that issued the order. See NRS 33.080(2)
      • On 2 days’ notice to the party who obtained the temporary order, the adverse party may appear and move its dissolution or modification, and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Until the order is dissolved or modified or expires by its terms, it must be obeyed.
      • In certain circumstances involving an offense enhancement, the validity of the prior conviction is a necessary element that the State had to prove in order to enhance an offense. e., requiring the State to prove facts of a prior offense for battery constituting domestic violence in order for offense enhancement to be imposed.
      • In contrast, the validity of a TPO is not an element that the State must prove for the crime of home invasion or for a sentence enhancement for the violation of a TPO.

Related Misdemeanor Offenses of Trespass and Malicious Destruction of Property

      • Most people are familiar with the slang terms for trespass of being “blackballed†or “86ed†in reference to kicking or throwing someone off private property.blackballed
      • This more familiar form of trespass happens when someone “willfully goes or remains upon any land or in any building after having been warned by the owner or occupant thereof not to trespass.†200(1)(b).  This is considered a lesser included offense of burglary.
      • The other form of trespass requires proof that a person entered any building of another with specific intent to “vex or annoy the owner or occupant thereof, or to commit any unlawful act.†This is not a lesser included offense of home invasion because home invasion requires only proof that of forcible entry was without permission of owner, resident, or lawful occupant.
      • Likewise, malicious injury to property contains an element that home invasion does not: that the property belongs to another. NRS 206.310. Home invasion only requires a forcible entry of an inhabited dwelling, not necessarily of another.

Penalties

      • Burglary and Home Invasion are category B felonies punishable by 1 – 10 years in prison and could be order to pay a fine of not more than $10,000.00.
      • However, a person is not eligible for probation if convicted of burglary and/or home invasion or if previously convicted with burglary and/or home invasion.
      • Possession of Instrument with Burglarious Intent is a gross misdemeanor and carries a maximum of one year in prison and fines not more than $2,000.
      • If found guilty of possession of a firearm or explosive before, during, and after the commission of the crime, the term of imprisonment can be between 2 -15 years and fines of not more than $10,000

Seek help from Atty. Ross Goodman

An experienced Las Vegas defense attorney Ross Goodman can help you develop the best defense to successfully resolve Burglary, Home Invasion and relaed charges. Contact Attorney Ross C. Goodman at (702) 383–5088 for a free consultation to further discuss your case

References:

https://www.leg.state.nv.us/NRS/NRS-205.html

http://www.bjs.gov/index.cfm?ty=tp&tid=321