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Under common law, burglary was the breaking and entering into the dwelling of another at night with intent to commit a felony therein. Wisconsin Statute 943.10 has expanded upon that definition removing the requirement that entry must be through a broken passage, expanding the dwelling to include commercial and other structures, expanded the time to any time of the day or night, and included theft (an intent to steal) as well as a felony intention.
Wisconsin Statute 943.10 Burglary
A burglary occurs when any person intentionally enters any room within or any structure used as a building or dwelling, an enclosed railroad car, an enclosed portion of any ship or vessel, a locked enclosed cargo portion of a truck or trailer, a motor home or other motorized type of home or a trailer home, whether or not any person is living in any such home, with intent to steal or commit a felony therein and without consent of the person in lawful possession.
Presence of Persons
A person convicted of a burglary is subject to the penalties provided for a Class F felony if no person was present in the structure at the time of the burglary, or a Class E felony if a person was lawfully present.
If the burglar either was armed upon entry or armed himself during the burglary with a dangerous weapon or any device or container that contains a combination of oleoresin of capsicum and inert ingredients, but does not contain any other gas or substance that could cause bodily discomfort, then he can be charged with Burglary as a Class E felony charge, and is subject to the penalties of a Class E felony.
Burglary With Use of Explosive
If the burglar opens or attempts to open any depository by used of an explosive, then he or she is subject to Class E felony charges and the penalties provided for a Class E felony.
Burglary & Battery
If during the burglary, the burglar committed a simple battery upon a person who was lawfully present within the structure, then the burglary charge is a Class E felony. If the battery upon another was more substantial than a simply battery (Substantial Battery or Aggravated Battery), then the burglar is subject to separate charges for battery (State v. Reynolds, 206 Wisconsin 2d 356, 557 N.W.2d 821 (Ct. App. 1996), 96-0265), and double jeopardy would not apply because battery with burglary is a simple battery.
Burglary & Robbery
A burglary can occur without the property owner present; a robbery cannot.
Entry Without Consent
Entry need not be forced, but it must be without consent of the person in lawful possession of the property. However, the state need not prove that the defendant knew that his or her entry was without consent (Hanson v. State, 52 Wisconsin 2d 396, 190 N.W.2d 129 (1971)).A burglary is completed after a door is opened and entry made, even if the burglar changes his mind and starts to leave the scene before arrested (Morones v. State, 61 Wisconsin 2d 544, 213 N.W.2d 31 (1973)). Once proof of entry has been made, the burden to show consent is upon the defendant (LaTender v. State, 77 Wisconsin 2d 383, 253 N.W.2d 221 (1977)).
Consent has a shelf life, so to speak, and it can be terminated or ended unless otherwise provided by the person having the lawful authority to give consent. An employer gives consent to employees to enter the workplace during working hours. A key to the building facilitates that consent, but that consent is granted during working hours (opening until closing) as provided by the employer. If an employee enters the building after hours, he may expose himself to burglary charges (State v. Schantek, 120 Wisconsin 2d 79, 353 N.W.2d 832 (Ct. App. 1984)).
Entry into a place during the time when it is open to the general public is with consent. However, remaining in that place after hours when it is no longer open to the general public is not with consent. In Levesque v. State (63 Wisconsin 2d 412, 217 N.W.2d 317 (1974)), the court held the defendant's act of hiding in a false ceiling of the men's room, perfected by false pretenses and fraud, rendered an otherwise lawful entrance into a restaurant unlawful.
The act of entering the structure must be intentional.
Evidence that the defendant walked around a private dwelling knocking on doors, then broke the glass in one, entered, and when confronted offered no excuse, was sufficient to sustain a conviction for burglary. Raymond v. State, 55 Wisconsin 2d 482, 198 N.W.2d 351 (1972). The act of intentionally knocking, which then resulted in an entry was sufficient to prove burglary.
Committing A Felony Within
The burglar must have an intent to commit a felony while in the burglarized structure. The intent can be to steal (a theft crime), or commit any felony against a person or property (State v. O'Neill, 121 Wisconsin 2d 300, 359 N.W.2d 906 (1984)), and the jury need not determine which felony was intended (State v. Hammer, 216 Wisconsin 2d 214, 576 N.W.2d 285 (Ct. App. 1997), 96-3084). While one cannot steal their own property, which was a point of argument for the recent O. J. Simpson visit to Las Vegas, the property must rightfully be theirs; otherwise, it is a theft. If the property is money, it must be the exact same dollars and cents (not in quantity, but by serial numbers on the bills).
A person commits a burglary by entering premises with the intent of committing a felony against persons or property while on the premises, regardless of whether the person's actions while within the premises constitute a new crime or the continuation of an ongoing offense. Felon in possession of a firearm is a crime against property or persons that may be an underlying felony for a burglary charge (State v. Steele, 2001 WI App 34, 241 WI 2d 269, 625 N.W.2d 525, 00-0190).
While intent to steal will not be inferred from the fact of entry alone, additional circumstances such as time, nature of place entered, method of entry, identity of the accused, conduct at the time of arrest, or interruption, and other circumstances, without proof of actual losses, can be sufficient to permit a reasonable person to conclude that the defendant entered with an intent to steal. (State v. Barclay, 54 WI 2d 651, 196 N.W.2d 745 (1972)).
Burglarious Tools Are Illegal To Possess
Under Wisconsin statute 939.72, it is illegal to possess burglarious tools. A person can be prosecuted for both burglary and possession of burglarious tools (Dumas v. State, 90 WI 2d 518, 280 N.W.2d 310 (Ct. App. 1979)).
Criminal Defense Attorneys
When you are seeking criminal defense help, it helps to know that because of the past successes of the attorneys at Van Wagner & Wood, they may be able to obtain a very favorable outcome for you, even when everything about the situation seems bleak and hopeless. By placing your case in their competent hands, you can step back and leave the hard work to them. Although there are no guarantees, at least you will know that you have the good, solid, competent, experienced, well-regarded and highly respected help of Van Wagner & Wood.
Free First Consultation
If you have been accused of burglary or possessing burglarious tools, or if you have already been convicted of the crime of burglary but believe your conviction or sentence was wrong, please call ( or ) or e-mail the attorneys at Van Wagner & Wood. The criminal defense attorneys at Van Wagner & Wood will give you a brief but professional free "first-impression" analysis of your case and your situation, which will allow you to take an important first step in defending the case against you.