In AZ, on Friday October 5th, Vicky Newname was sleeping at 6am when she was awakened by a loud knock at the door. When she opened the door, Dr. Adam Oldguy, her husband from whom she has separated from her for the past month, pushed his way into her apartment. He demanded that she give him his valuables now that he had moved into his mom’s home. Vicky said that Adam was crazy and that she didn’t know what he was talking about. She told him to leave the room immediately. Adam said that he wouldn’t leave without his stuff and began to search the home. He said, “I pay for this place so I can do what ever I want.
My name is on the lease”. Chapter 15 of title 13 of the Arizona Revised Statutes provides for crimes that deal with trespassing and burglary. These are the crimes that are related to unlawful entry. The crimes found under this chapter are criminal trespass in the third degree; criminal trespass in the second degree; criminal trespass in the first degree; possession of burglary tools, burglary in the third degree; burglary in the second degree; and burglary in the first degree. The difference between the various degrees of trespassing lies on the kind of property the offender entered into.
In third degree trespassing, the property entered into is real property not falling under second degree trespassing and first degree trespassing. In second degree trespassing, the property entered into is a non-residential structure. In first degree trespassing, the property unlawfully entered is generally residential or fenced property. Similarly, the difference between the various degrees of burglary lies in the kind of property unlawfully entered as well as the means of commission. In third degree burglary, the property unlawfully entered is a non-residential structure or a fenced commercial lot.
In second degree burglary, the property unlawfully entered is a residential property. In first degree burglary, the offender in the commission of the act of burglary in either of the places mentioned above either knowingly possesses explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony. Among the crimes enumerated in chapter 15, first degree criminal trespass and second degree burglary are the most relevant to the facts of the case. Section 13-1504 provides for the different manners of committing first degree trespassing.
These are the following: A person commits criminal trespass in the first degree by knowingly: 1. Entering or remaining unlawfully in or on a residential structure. 2. Entering or remaining unlawfully in a fenced residential yard. 3. Entering any residential yard and, without lawful authority, looking into the residential structure thereon in reckless disregard of infringing on the inhabitant's right of privacy. 4. Entering unlawfully on real property that is subject to a valid mineral claim or lease with the intent to hold, work, take or explore for minerals on the claim or lease.
5. Entering or remaining unlawfully on the property of another and burning, defacing, mutilating or otherwise desecrating a religious symbol or other religious property of another without the express permission of the owner of the property. 6. Entering or remaining unlawfully in or on a critical public service facility. Section 13-1507 provides that a person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.
These are the relevant provisions because they both involve the unlawful entering of the offender in a residential structure as the case at bar. The only difference lies in the intention of the offender. In the case of trespassing, the basis of the criminal liability is the mere unlawful or unauthorized entry into property that does not belong to him. To avoid conviction, he must prove that he was authorized by the owner to enter the property or that the owner would have consented had he known the circumstances of the entry.
In burglary, however, aside from the fact of unlawful entry, there must also be intent to commit a felony such as theft (lawschool. mikeshecket. com). In determining which of the two crimes shall be the proper crime to be charged, it is important to determine the intent of Dr. Oldguy. But before we dwell upon the intent, we must first look into the circumstances of his entry and determine whether or not it constitutes unlawful or unauthorized entry. According to the facts, Dr. Oldguy pushed his way into her apartment. This constitutes unlawful entry.
The fact that he had to use force to gain entry suggests that Vicky did not want him in the apartment. This alone is sufficient for the charge of trespassing. However, in order to determine if burglary should be the proper charge, the intention of his unlawful entry must now be looked into. As mentioned above, burglary is defined as trespassing with the intention to commit a felony. Now that trespassing is established, the intention of Dr. Oldguy should now be looked into to determine if burglary is a proper crime to charge.
According to the facts, Dr. Oldguy entered into the property with the intention of taking back his valuables. The demand for the reclaiming of one’s own property is not a felonious act. It doesn’t matter if no such things can be found in the apartment. What is important is that his intention was merely to get back something that he owns, not something that is not rightfully his. The means may not justify his actions, but this intention shows that the act committed was not burglary. Since his intentions were not felonious, the proper crime to be charged against Dr. Oldguy with respect to this issue should be first degree criminal trespass.