Consent Upon a Sure Foundation

Is lack of consent an element of burglary?  This post arises from a conversation I had with a colleague who asserted that the homeowner’s consent could legitimize an entry that would otherwise constitute a burglary.  Insofar as a defendant might introduce evidence at trial to establish a lawful entry, that’s certainly correct.  But does the State affirmatively have to allege and prove a lack of consent?  One of the nine common law felonies, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein.  4 Bl. *224.  North Carolina statute divides the crime into degrees – it’s first-degree if the home is occupied – but otherwise retains the common law definition.  N.C.G.S. § 14-51.  Whatever the State might now have to prove at trial to obtain a conviction, the common law elements did not explicitly include a lack of consent.  This post explores the issue of consent in our criminal law and attempts to determine how consent operates to prove or disprove a burglary.

Consent Generally: Three Categories of Crimes.

In general, consent is a defense when it negates an element of the offense or precludes infliction of the harm that the law defining the offense sought to prevent.  Wayne R. LeFave, 1 Substantive Criminal Law § 6.5 (3rd ed. 2002).  Perkins proposes three categories of crimes: (1) those such as murder where the victim’s consent is immaterial to the defendant’s guilt, (2) those such as rape where the absence of consent is an essential element by definition of the crime, and (3) those such as battery where consent will determine whether the conduct was lawful or unlawful.  Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 1074-75 (3rd ed. 1982).  Even for offenses in the third category, there are limits to what the law will recognize as valid consent: mutual compliance with Queensberry Rules might excuse a battery; compliance with the code duello will not.  Id.

At first blush, burglary would seem to fall into the third category: the offense is traditionally defined without reference to the victim’s consent, but a consensual entry is not burglary.  As illustrated below, however, burglary is probably more akin to forcible rape, where lack of consent is integral to the crime.  Though the caselaw is somewhat conflicting, it appears the burden is initially on the State to show an unauthorized entry, though an indictment for burglary is not defective for failure to allege a lack of consent.

For some crimes, consent makes no difference.  Consent is not a defense, for example, to mayhem (i.e., depriving another of the use of such of his members as may render him less able in fighting).  State v. Bass, 255 N.C. 42, 50, 120 S.E.2d 580, 586 (1961).  In Bass, a physician who had numbed a man’s fingers (so the man could cut them off for the insurance money) was prosecuted as an accessory before the fact to maiming under Section 14-29.  On appeal, the defendant argued there was no violation as the victim had consented.  Id.  at 44, 120 S.E.2d at 582.  Our Supreme Court noted that consent was not a defense to the common law crime of mayhem, and it held that consent was likewise no defense to statutory maiming.  Id. at 50, 120 S.E.2d at 586.  “It would be strange policy indeed,” our Supreme Court said, “if a man could hire or persuade another to kill him and the murderer, by reason of the consent, go free, or if one could persuade another to disable him and the other escape punishment by reason of the consent.”  Id.

At the other extreme are crimes specifically defined as nonconsensual acts.  “At common law rape occurred when there was sexual intercourse by force and without the victim’s consent.”  State v. Moorman, 320 N.C. 387, 391, 358 S.E.2d 502, 505 (1987); see id. at 392, 358 S.E.2d at 506 (noting our rape statutes “essentially codify” the common law).  Accordingly, the victim’s consent is a complete defense to a charge of rape.  State v. Alston, 310 N.C. 399, 407, 312 S.E.2d 470, 475 (1984); State v. Yelverton, 274 N.C. App. 348, 352, 851 S.E.2d 434, 437 (2020), disc. review denied, 377 N.C. 567, 858 S.E.2d 117 (2021).  Still, consent induced by fear of violence is void and is no legal consent.  Alston, 310 N.C. at 407, 312 S.E.2d at 470.  Further, our rape statutes were amended in 2018 to clarify that forcible intercourse is rape whether it occurs without the victim’s consent or after consent has been revoked.  N.C.G.S. § 14-27.20(1a) (2021).

Kidnapping would seem to fall into the same category of crimes.  Statutorily defined as an unlawful confinement, restraint, or removal of a person “without the consent of such person,” kidnapping (like rape) cannot be described without negating consent.  N.C.G.S. § 14-39.  Yet our Supreme Court has characterized consent as “an absolute defense” and held a kidnapping indictment (which alleged kidnapping by restraint) was not invalid for failure to allege a lack of consent.  State v. Sturdivant, 304 N.C. 293, 310, 283 S.E.2d 719, 731 (1981); see also State v. Froneberger, 55 N.C. App. 148, 150, 285 S.E.2d 119, 121 (1981) (upholding indictment that alleged unlawful confinement, restraint, and removal without negating consent), cert. denied, 305 N.C. 397, 290 S.E.2d 367 (1982).  The Court’s reasoning is illuminating: “[b]y its very nature, the crime of kidnapping cannot be committed if one consents to the act.”  Id.  It goes without saying, in other words, that kidnapping is nonconsensual.  Our Supreme Court elsewhere recognized that the State must prove the action was taken without consent.  State v. China, 370 N.C. 627, 633, 811 S.E.2d 145, 149 (2018); State v. Hunter, 299 N.C. 29, 40, 261 S.E.2d 189, 196 (1980).  Kidnapping is peculiar in that requires the State to prove at trial an essential element of the offense that may be omitted from the criminal pleading.

Breaking Requires a Trespass: An Unauthorized Breach.

So too with burglary.  An indictment for burglary, like an indictment for kidnapping, need not allege a lack of consent.  State v. McCormick, 204 N.C. App. 105, 112, 693 S.E.2d 195, 199 (2010).  In support of this holding, our Court of Appeals noted that the common law definition of burglary does not mention consent.  Id. at 111, 693 S.E.2d at 198.  It concluded that “[o]ur case law does not require that this element be specifically pled.”  Id.; see also State v. Pennell, 54 N.C. App. 252, 283 S.E.2d 397 (1981) (indictment for burglary with explosives under G.S. 14-57 need not allege lack of consent), appeal dismissed, disc. review denied, 304 N.C. 732, 288 S.E.2d 804 (1982).  The Court of Appeals thus acknowledged that lack of consent constitutes an element, and at the same time held an indictment (which generally must allege all the elements) was valid despite its omission.  See N.C.G.S. § 15A-924(a)(5) (all elements must be alleged).

The Court of Appeals’ hedging in McCormick finds some support in the literature.  “[T]respass is not dealt with as a separate element of burglary although there is no ‘breaking’ without trespass.”  Perkins, Criminal Law, 303 n.43.  Indeed, “[t]he trespass is so obvious in the ordinary case of burglary that it receives attention very rarely.”  Id.  Still, breaking as an element of common law burglary requires a breach of the building made by trespass; it cannot be established by the act of one who is authorized to enter.  Id. at 250; see also LaFave, Substantive Criminal Law, § 21.1(a) (“anyone given authority to come into the house could not be committing a breaking when he so entered.”).

If the caselaw sometimes treats consent as a defense, that is perhaps because the State’s burden to show an unauthorized entry is comparatively light.  See State v. Sanders, 280 N.C. 81, 85, 185 S.E.2d 158, 161 (1971) (“Nothing in the evidence warrants a finding defendant had permission to enter the building.”); State v. Watts, 76 N.C. App. 656, 658, 334 S.E.2d 68, 70 (1985) (consent is a defense, but it is not necessary to show non-consent of the owner, only non-consent of the occupant), disc. review denied, 315 N.C. 596, 341 S.E.2d 37 (1986).  To be sure, “the State must prove lack of consent by the owner or occupant of the building entered.”  State v. Williams, 330 N.C. 579, 586, 411 S.E.2d 814, 819 (1992); see also State v. Boone, 297 N.C. 652, 658, 256 S.E.2d 683, 687 (1979).  But evidence of a forced entry is sufficient.  See Williams, 330 N.C. at 586-87, 411 S.E.2d at 819 (“evidence of the breaking down of the locked front door of the residence was substantial evidence that the defendant lacked consent to enter.”); Sanders, 280 N.C. at 85, 185 S.E.2d at 161 (broken windows, damaged safe, and missing property sufficient to show breaking).  By contrast, the caselaw has made it rather difficult for a defendant to show consent as a defense to burglary, asking not only whether the defendant obtained consent but also whether such consent was legally valid.

Limitations on Consent: Fraud, Force, and Lack of Authority.

Consent obtained by fraud presents a difficult case.  The traditional rule is that if the deception “causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally recognized consent;” whereas consent induced by fraud is effective “if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).”  Perkins, Criminal Law, 1079; cf. LaFave, 1 Substantive Criminal Law, § 6.5(a).  Hence, a physician who obtains a woman’s consent to conduct an examination and has sexual intercourse with her instead is guilty of rape; whereas one who obtains consent to have sexual intercourse by falsely claiming sex will cure some malady is not (the woman being above the age of consent and understanding sexual intercourse is involved).  Cf. State v. Nash, 109 N.C. 824, 834, 13 S.E. 874, 875 (1891).  “This same distinction between fraud in the factum and fraud in the inducement is also relevant as to other crimes defined in terms of lack of consent.”  LaFave, 1 Substantive Criminal Law § 6.5(a).

In the case of burglary, the question of fraud arises from an entry gained by trick or artifice.  Unwilling to allow such a ruse to succeed, the courts evolved the legal fiction of a “constructive breaking.”  Accordingly, absent evidence the defendant committed an actual breaking, when entrance is obtained by threats, by deception, or otherwise by procuring an occupant to open the door, the law recognizes a breaking sufficient to establish a burglary.  See State v. Wilson, 289 N.C. 531, 540-41, 223 S.E.2d 311, 316 (1976); see also State v. Young, 312 N.C. 669, 681, 325 S.E.2d 181, 189 (1985) (victim was tricked into opening door through perpetrator’s false statements that he came to purchase liquor).  It follows that consent to enter obtained by such a fraud is invalid.  See State v. Oliver, 334 N.C. 513, 529, 434 S.E.2d 202, 210 (1993); State v. Wheeler, 70 N.C. App. 191, 195, 319 S.E.2d 631, 634 (1984), disc. review denied, 312 N.C. 624, 323 S.E.2d 925 (1984).  (In a dubious extension of the doctrine, constructive breaking has also been used to describe a breaking made by a co-defendant even absent any evidence of fraud.  See State v. Bray, 321 N.C. 663, 673, 365 S.E.2d 571, 577 (1988); State v. Smith, 311 N.C. 145, 150, 316 S.E.2d 75, 78 (1984)).

Consent may likewise be deemed invalid if it is ultra vires.  “The breaking and entry of the dwelling must be without the consent of anyone authorized to give consent.”  State v. Meadows, 306 N.C. 683, 689, 295 S.E.2d 394, 398 (1982), overruled on other grounds by State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983).  Again, “[a]lthough one may consent to entry by another into an occupied dwelling, consent as a defense is not established until authority to consent is determined to be valid.”  State v. Upchurch, 332 N.C. 439, 458, 421 S.E.2d 577, 588 (1992).  In Upchurch, our Supreme Court rejected the argument that a conspiracy with the victim’s stepson (to murder the victim) furnished the defendant with authorized consent to enter.  Id.  Similarly, our Court of Appeals rejected the argument that the defendant obtained valid consent from a minor to enter the home to commit statutory rape.  State v. Brown, 176 N.C. App. 72, 78, 626 S.E.2d 307, 313, disc. review denied, 360 N.C. 538, 634 S.E.2d 221 (2006); see also State v. Tolley, 30 N.C. App. 213, 215, 226 S.E.2d 672, 674 (1976) (permission from victim’s son did not authorize defendant to enter for the purpose of stealing valuables), disc. review denied, 291 N.C. 178, 229 S.E.2d 691 (1976); cf. State v. Thompson, 59 N.C. App. 425, 427, 297 S.E.2d 177, 179 (1982) (sufficient evidence daughter lacked consent to enter parents’ home), appeal dismissed, disc. review denied, 307 N.C. 582299 S.E.2d 650 (1983).

The question, of course, is not whether the alleged consenter actually had authority to consent, but whether the defendant reasonably believed he had obtained consent, which (like constructive breaking) pertains to the defendant’s intent upon entering.  See State v. Friddle, 223 N.C. 258, 260-61, 25 S.E.2d 751, 752–53 (1943); cf. Upchurch, 332 N.C. at 458, 421 S.E.2d at 588 (“good faith, reasonable belief”); Tolley, 30 N.C. App. at 215, 226 S.E.2d at 674 (“a good faith belief”).  Evidence the defendant committed a felony within the home, though unnecessary for a burglary conviction, is relevant to proving the defendant’s intent.  State v. Warren, 313 N.C. 254, 262, 328 S.E.2d 256, 262 (1985).  At least where other victims are involved, our courts have been reluctant to find a consensual entry based on the alleged consent of a co-conspirator.  E.g., Upchurch, 332 N.C. at 458, 421 S.E.2d at 588; Tolley, 30 N.C. App. at 215, 226 S.E.2d at 674.

Lack of Consent is an Implicit Element of Burglary.

The pattern instructions advise the jury that to find the defendant guilty of first-degree burglary, the State must prove five things: (1) that the defendant broke and entered a dwelling house, (2) that the breaking and entering was during the nighttime, (3) that the dwelling house was occupied at the time, (4) that the owner or tenant did not consent to the breaking and entering, and (5) that the defendant intended to commit a felony within the dwelling house.  N.C.P.I. Criminal 214.10 (June 2011).  It is worth noting how this differs from the common law definition of burglary.  The third item – occupancy of the home – reflects the statutory division of the offense into degrees.  The fourth item – that the owner or tenant did not consent – makes explicit what the common law meant by a breaking, that is, an unauthorized breach of the building.

The practical prosecutor should not be daunted by the State’s burden to show an unauthorized entry.  As illustrated above, the evidentiary showing required to satisfy this “element” is not particularly onerous.  Any evidence of a forcible entry – a broken window, a damaged door – would seem to be sufficient.  See Williams, 330 N.C. at 586-87, 411 S.E.2d at 819; Sanders, 280 N.C. at 85, 185 S.E.2d at 161; see also State v. Vetter, 257 N.C. App. 915, 924, 810 S.E.2d 759, 764 (2018) (“that Defendant had to kick in the door in order to gain entry into the residence supports the proposition that he lacked permission to enter the home.”); State v. Jones, 151 N.C. App. 317, 329, 566 S.E.2d 112, 120 (2002) (defendant was seen leaving apartment through a window with a crowbar in hand, pry marks were found on the window), appeal dismissed, disc. review denied, 356 N.C. 687, 578 S.E.2d 320 (2003), cert, denied, 540 U.S. 842, 157 L. Ed. 2d. 76 (2003).

On the other hand, a defendant seeking to establish consent as a defense has a rather more difficult job.  Alleged consent might be vitiated by evidence of threats or fraud.  Under a theory of constructive breaking, entry gained by threat of force or fraudulent representation is sufficient for burglary, even absent evidence the defendant himself created a breach.  See N.C.P.I. Criminal 214.10 n.1.  Further, consent is not established until authority to consent is determined.  At least when minors are involved, our courts have refused to believe a defendant could have reasonably believed he obtained consent to enter a home to commit a felony.  Lack of consent as an element of burglary may be tacit, but consent as a defense is anything but.