If you have arrested and charged with any of the graduated levels of burglary, it is important that you are aware of the elements so that you have not been improperly charged with wrong level of burglary. It is necessary to evaluate the facts involved and determine which elements are met to constitute the appropriate level and charge of burglary.
The following constitutes the elements of burglary in Tennessee that a prosecutor would have to prove beyond a reasonable doubt:
Pursuant to T.C.A. 39-14-402, a person commits burglary who, without the effective consent of the property owner:
(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;
(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;
(3) Enters a building and commits or attempts to commit a felony, theft or assault; or
(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.
Elements (1) and (2) are class D felonies and elements (3) are class E felonies. A Class D Felony is punishable by 2 to 12 years in prison and/or a fine of up to $5,000. A Class E Felony is punishable by 1 to 6 years in prison and/or a fine of up to $3,000.
If any person extends any portion of their body or an object attached to any part of their body into a building or such other vehicle as identified above, then they have committed a burglary.
As noted in the statutory elements above, it references a building “other than a habitation.” This is an important distinction as committing the elements of a “burglary” in a “habitation” is often referred to as a home invasion or as the statute refers “aggravated burglary” which is a class C felony T.C.A. 39-14-403 A Class C Felony punishable by 3 to 15 years in prison and/or a fine of up to $10,000.
Habitation is defined by T.C.A. 39-14-401 as:
(A) Means any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons;
(B) Includes a self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant; and
(C) Includes each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle;
If a person commits a burglary and it results in serious bodily harm of a person lawfully in the habitation or building, then they have committed “especially aggravated burglary.” T.C.A. 39-14-404 This is a Class B Felony punishable by 8 to 30 years in prison and/or up to a $25,000 fine.
There may be additional collateral consequences for a conviction of burglary. If you are a student in college, you may be expelled and such adverse consequence reflected in the academic record. There may be policies in your employee handbook that any plead or conviction for a crime of dishonesty such as burglary will result in termination of employment. This may occur regardless by mere incarceration. If you are a professional licensed in Tennessee, it may result in an adverse action to your license. In certain circumstances and if your first criminal offense, you may possibly qualify for pre trial or post trial diversion which would expunge a burglary conviction from your record. Any felony conviction disqualifies you for life from ever possessing or being around a firearm or ammunition.
The circumstances of entry into a habitation, building, or vehicle is a determinative factor for a conviction of burglary. If you entered the habitation, building, or vehicle with consent and proceeded to commit theft for example, then you may be able to have the charges reduced to theft which has much less punishment. There are number of other facts to evaluate to determine whether a prosecutor can meet the elements outlined above. The degree of bodily harm committed would be another example of whether you are guilty of especially aggravated burglary. If you enter the home without consent and commit theft or another felony and you inadvertently “bump” into a homeowner while escaping causing them to fall down, then you likely have not committed serious bodily harm assuming there are no serious injuries.
Another major factor to be proven is your intent. There is a remarkable distinction between criminal trespass and burglary and that depends on your intent to commit a felony, theft or assault. It can be very difficult to prove your intent without facts to support the elements of theft or assault or some other felony.
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