The General Assembly recently passed, and the Governor recently signed, HB 2 (S.L. 2016-3), popularly known as “the bathroom bill.” This post considers whether it is now a crime for a transgendered person to use the bathroom of the sex with which he or she identifies. Continue reading
Tag Archives: breaking or entering
The web has several stories about large retail stores banning people caught shoplifting from returning, sometimes for life, sometimes from all of the stores in the chain. Sometimes the incident prompting the ban goes to court, with the person convicted of shoplifting. Sometimes the store does not pursue criminal charges but rather has the person sign an agreement acknowledging that he or she is not permitted to come back. What happens if the person returns, reenters the store, and is caught shoplifting again? In some districts in North Carolina, the person is charged not with trespassing and shoplifting, both misdemeanors, but rather with felony breaking or entering under G.S. 14-54(a). I have reservations about whether the law supports this charge. Continue reading →
In Charlotte, there is a controversy over whether a transgendered person should use the bathroom assigned to his or her biological sex or to the sex with which he or she identifies. The Charlotte Observer has the story here. This post doesn’t address that issue directly, but instead concerns a related question that the story prompted me to ponder: is it illegal for a man to use the ladies’ room? Continue reading →
I’ll willing to bet that most of you sang these lyrics as a child: “You put your right hand in, You put your right hand out, You put your right hand in, And you shake it all about, . . .” But I’m also willing to bet that you never pondered this: What about putting the butt of a shotgun in? Is that entry for purposes of burglary? Well, the issue came in a recent case, State v. Watkins, giving us a great opportunity to review the rules about the meaning of the term “enter” as used in burglary and related offenses.
In Watkins, the defendant used the butt of a shotgun to break a window of a townhome. The defendant had heard that there were drugs inside, and he planned to steal the drugs, money or both. When the defendant broke the window the end of the shotgun “breached the threshold” of the premises, which is just a fancy way of saying that part of the shotgun entered the window. The defendant then heard a noise inside the townhome and fled. The defendant was charged with and convicted of first-degree burglary. On appeal, he argued that the evidence was insufficient on the issue of entry. The State countered, arguing that the simultaneous breaking and entering by the end of the shotgun into the window of the residence was sufficient to support the conviction. The Court of Appeals agreed with the defendant, in an opinion that’s right in line with existing law.
Even before Watkins, North Carolina law was clear that the term “entering” for purposes of burglary and related crimes does not require that the defendant put his or her whole body inside the premises. State v. Surcey, 139 N.C. App. 432, 435 (2000) (quoting State v. Gibbs, 297 N.C. 410, 428 (1979)). Rather, this element is satisfied “by inserting into the place broken the hand, the foot, or any instrument with which it is intended to commit a felony.” Id. Thus, when the defendant put a shotgun through a window and fired the gun into the premises, there was sufficient evidence of this element. Id. at 435–36; see also Gibbs, 297 N.C. at 418–19 (the defendant stood at the window with his hand holding a small pistol extended into the victim’s den). However, case law also was clear that inserting a tool into the building is not entering if the insertion is only for the purpose of breaking (for example, when a crowbar is shoved an inch or two into the building for the purpose of forcing a window open). But as noted, if the tool is inserted for the purpose of committing a felony (for example, when a hook for stealing something or the barrel of a gun for killing an occupant is thrust through a window opening), an entering occurs. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 253 (3d ed. 1982); see also Surcey, 139 N.C. App. at 435–36 (shotgun put through a window to fire into the house).
As mentioned, Watkins is right in line with this law. In that case the court concluded:
[T]here is no entry if the breach was accomplished only by an instrument inserted simultaneously during the course of the break. Accordingly, where the State’s evidence seeks to establish an entry by the defendant’s use of an instrument, the defendant can only be guilty of burglary if the instrument that crossed the threshold was itself used to commit a felony within the residence. Thus, the defendant must either physically enter the residence, however slight, or commit the burglary “by virtue of the [instrument].”
The result? The defendant’s burglary conviction was overturned. But it wasn’t an outright win for the defense. The court went on to find the evidence sufficient to support a conviction for felonious breaking or entering, which unlike burglary requires only a breaking or an entering, not both.
Now that Christmas is over, Santa’s cases are coming on for trial. He’s accused of multiple counts of burglary. We already know the facts: He entered dwellings at night, using the chimney to gain entry, while the residents slept soundly in bed. The indictments charge that once inside, he stole milk and cookies. Being a good guy, Santa wanted to help out the unemployed so he hired a newly minted law school graduate to serve as defense counsel. Santa’s lawyer is all hot under the collar about these charges. Not only is she angry that Santa’s being held on a very high bond (the magistrate wasn’t able to verify his address and he couldn’t produce ID), but also she’s giving media interviews claiming that the charges are unfounded. Defense counsel claims that because the chimneys were open Santa didn’t commit a breaking. But counsel is wrong. Let’s review the law.
For purposes of burglary and related offenses, the term “breaking” means the making of some kind of opening, however slight, in the building. State v. Shaw, 106 N.C. App. 433 (1992). It may be through a usual opening, such as adoor, or an unusual opening, such as a chimney. State v. Willis, 52 N.C. 190 (1859) (the defendant removed boards covering a chimney and entered the house by descending the chimneyto the fireplace). Although merely going through an open door or window is not breaking, going through an open chimney constitutes a burglary. State v. Boon, 35 N.C. 244 (1852). The explanation for different treatment of chimneys is that a chimney, unlike a window or door, “is as much shut as the nature of the thing will admit.” Willis, 52 N.C. at 191. Although not relevant to Santa’s case, it’s worth noting that opening a door or window, even if unlocked, is breaking. State v. Simpson, 299 N.C. 335, 349 (1980); State v. Henderson,285 N.C. 1, 22 (1974). Also, a breaking does not require any destructive force. Henderson, 285 N.C. at 17. Thus, opening a partly opened door is a breaking, State v. Jaynes, 342 N.C. 249, 278 (1995), and as noted above, opening an unlocked door or window constitutes a breaking. Finally, the breaking of an inner door of a house or apartment can satisfy this element. Statev. Freeman, 313 N.C. 539, 549 (1985).
As should be clear from this discussion, Santa’s lawyer needs a new argument. Lucky for her, she’s got a winner. What is it? Consent! Burglary requires, among other things, that the breaking and entering be done without consent. So save those “Dear Santa” letters, defense counsel is getting her trial exhibits in order!
I recently blogged about some of the questions that arise in connection with breaking or entering a motor vehicle, e.g., whether one commits that offense if one reaches into the open bed of a pickup truck. I’ve also been asked several questions recently about breaking or entering a building, and specifically, about what counts as a “building.”
The question seems simple enough. Under G.S. 14-54, it is a crime to “break or enter any building.” Plain old breaking or entering is a misdemeanor, but if the crime is committed with the intent to commit larceny or a felony in the building, as it often is, the offense is a felony. The statute actually defines “building” as “any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.”
The italicized language is, um, rather broad. Do those fake rocks made to hold spare house keys count as “buildings”? They’re certainly “designed to house or secure within [them] . . . property.” What about a vegetable garden surrounded by chicken wire? Is there any chance that I can prosecute the rabbits that always eat my green beans?
Looking at North Carolina Crimes helps advance the ball. It notes that “a building . . . may be a store, boiler room, shop, warehouse, bank, garage, mobile home, trailer put up on blocks and used for storage . . . or any other permanent structure with walls and a roof.” Jessica Smith, North Carolina Crimes 300 (6th ed. 2007). The “walls and a roof” language appears to come from State v. Gamble, 56 N.C. App. 55 (1982). The court there held that a fenced-in area used for parking and storage was not a “building.” Relying on a dictionary definition of “building” and on the history of our state’s breaking or entering statutes, the court ruled that a building requires “one or more walls and a roof.” That suggests that fake rocks and vegetable gardens are out. Bunnies, you can rest easy.
But hard cases remain. For example, what about open carports? I’m not aware of a North Carolina case on point, and cases in other jurisdictions are mixed. The answer may depend on whether the carport is attached to a house — and so has at least one wall — or whether it is completely free-standing. See generally, e.g., People v. Thorn, 176 Cal. App. 4th 255 (Cal. Ct. App. 2009) (intrusion into open carport supported burglary conviction); Jefferson v. State, 977 So. 2d 431 (Miss. Ct. App. 2008) (intrusion into detached carport did not support burglary conviction); State v. Johnson, 2006 WL 541333 (Wash. Ct. App. 2006) (unpublished) (intrusion into detached garage without door supported burglary conviction).
What about tents? North Carolina Crimes suggests that a tent is a dwelling for purposes of burglary, see Crimes at 295, from which it would seem to follow that a tent is a building for purposes of breaking or entering. Some support for this view comes from State v. Kaplan, 23 N.C. App. 410 (1974), which in passing characterized a tent as a “structure.” But see State v. Jake, 60 N.C. 471 (1864) (holding that a sturdy, permanent log cabin was a dwelling for the purposes of burglary and so “differs from a tent or a booth erected in a market or fair, in which no burglary could be committed, although the owner lodges in it”).
A useful collection of cases from across the country regarding the status of tents, doghouses, corn cribs, smokehouses, telephone booths, and other possible buildings is Jeffrey Ghent, What is “building” or “house” within burglary or breaking and entering statute, 68 A.L.R.4th 425 (1989). As always, I’d be interested to know about any recurrent issues not addressed above.
Under G.S. 14-56, it is a Class I felony to “break or enter any . . . motor vehicle . . . containing any . . . thing of value” with the intent to commit larceny or any felony. It sounds straightforward enough, but I was recently asked whether breaking into a toolbox affixed behind the cab of a pickup truck violates the statute. That led me to several other interesting issues, and my interlocutor was kind enough to permit me to summarize my research here. (She granted me a waiver of my own policy of not blogging about individual questions.)
Let’s start with some easy scenarios and then move to the tougher ones.
1. Obviously, breaking into the passenger compartment of a car violates the statute.
2. What about breaking into the trunk? This is included, too. The court of appeals considered the scope of the statute in State v. Nealy, 64 N.C. App. 663 (1983). Even the dissenting judge, who took the narrowest view of the statute, opined that it “proscribe[s] the breaking or entering of compartments of a motor vehicle in which property is customarily carried, i.e., the passenger compartment and the trunk area.”
3. How about the engine compartment? No property is usually carried there, so does a person commit breaking or entering a motor vehicle if he pops the hood with the necessary criminal intent? Yes. Although the dissenting judge in Nealy wouldn’t have gone so far, the majority upheld the defendant’s conviction based on reaching in and opening the hood of a vehicle, so the statute covers the engine compartment, too.
4. What if a person crawls under a vehicle and tries to remove a part, like the drive shaft? Now we’ve gone too far, probably. I don’t know of a North Carolina case on point, but in State v. Gore, 456 S.E.2d 419 (S.C. Ct. App. 1995), the court interpreted a similar South Carolina statute as applying only to those who break into the passenger compartment or a separate area such as “the trunk area, the engine compartment, [or] the gas tank,” and rejected the argument that attempting to remove a part from the vehicle’s underside violated the statute. Of course, such conduct is still illegal, it just doesn’t appear to be covered under G.S. 14-56.
5. What about toolboxes attached to trucks? This was the question that started it all. I wasn’t able to find an in-state case on point, but I have little doubt that an attached toolbox counts as part of the motor vehicle to which it is affixed. Functionally, it’s an aftermarket trunk. Cases from Texas confirm this analysis. State v. Ford, 860 S.W.2d 731 (Tex. Ct. App. Beaumont 1993) (breaking into toolbox “bolted and welded to the bed” of a truck constituted burglary of a vehicle under Texas law and was analogous to breaking into a vehicle’s trunk); Hopkins v. State, 864 S.W.2d 119 (Tex Ct. App. 14 Dist. 1993) (holding that “removal of tools from a toolbox attached to the bed of a pickup truck constituted entry into part of the vehicle” and so supported a conviction of burglary of a motor vehicle). As a sidebar, it’s fitting that these cases are from Texas. Over 26% of all vehicles there are pickups, tops in the nation, and the large, customized pickups often found there have been given the sobriquet “Texas Cadillacs.” As a second sidebar, I suppose that the same analysis would apply to an enclosed luggage carriers that is attached to the roof rack of a vehicle, although I couldn’t quickly find any cases on point.
6. What if there’s no toolbox, but a person reaches into the open bed of pickup truck with unlawful intent? Although a closer question, this, too, likely violates the statute. Cases from several jurisdictions — not just Texas! — have agreed on this point. People v. Frey, 467 N.E.2d 302 (Ill. Ct. App. 5 Dist. 1984) (“The bed of a pick-up truck is as much a part thereof as is, for example, the passenger cab or the truck compartment. We conclude that an unauthorized, knowing entry into the bed of a pick-up truck with intent to steal something therefrom is an act properly characterized and chargeable as burglary.”); State v. Cloud, 324 N.W.2d 287 (S.D. 1982) (burglary statute prohibits entry into any “structure” such as a “motor vehicle . . . or any portion thereof,” which includes the “open [bed] of a pickup truck”); People v. Banuelos, 577 P.2d 305 (Colo. Ct. App. 1977) (entering the open bed of a pickup truck constitutes entering a motor vehicle for purposes of the Colorado trespass statute).
Has anyone had other issues come up regarding what counts as part of the “motor vehicle” for purposes of G.S. 14-56? If so, please shoot me an email or post a comment.