The crime of burglary involves unlawful or unauthorized entry into a building or structure with the intent to commit a crime after gaining access.
Although burglary is typically associated with theft, it is sometimes done with the intent to commit other crimes. For example, assault, vandalism, or a sex crime.
If you commit a crime or attempt to do so, the case for burglary is fairly clear-cut, and you will likely face additional charges for these crimes. However, you need not actually commit a crime or even attempt to do so to be convicted of burglary – the intent to do so is sufficient.
In cases where the defendant did not commit or attempt to commit a crime, the burden of proving the defendant’s criminal intent falls on the prosecution. If the prosecution is unable to prove criminal intent, the defendant could be acquitted, or charged with the lesser crime of criminal trespass.
However, prosecutors are quite good at proving criminal intent in burglary cases, and often resort to tactics such as circumstantial evidence or statements made by the defendant – which is one of the reasons we always recommend that you exercise your right to remain silent.
Below, we discuss some of the strategies Colorado prosecutors use to prove criminal intent in burglary cases – and how to defend against them.
How Colorado Defines Criminal Intent
In some states, the prosecution must prove that the defendant intended to commit a felony once gaining entry to the building or structure. However, in Colorado, the intent to commit any crime other than trespass constitutes burglary. Unlike robbery, in burglary the defendant does not take anything directly from another person.
However, the entry must be unauthorized. For example, if the defendant is invited to a party and steals something from this host, this would constitute theft, but not burglary.
Even if the defendant went to the party strictly to steal the valuable, this would still only constitute theft, as the defendant was an invited guest. In contrast, if the defendant saw a valuable item while at the property, and later returned to break in and steal the item, this would constitute burglary.
Likewise, the prosecution must prove that the defendant trespassed with the intent to commit a crime, and that they did not form the intent after entering the building or structure.
For example, suppose that the defendant breaks into a locked building to take shelter from a thunderstorm. Once inside, the defendant finds a valuable item, and decides to steal it.
The defendant may be charged with several other crimes, but not with burglary, as their intention was to avoid the thunderstorm, not to commit theft. The idea of stealing the object was an afterthought, and it did not occur until the defendant had already committed unauthorized entrance.
So, how do prosecutors go about proving criminal intent in burglary cases?
How Colorado Prosecutors Prove Criminal Intent for Burglary
Many times, defendants will confess to the police (or others) that they entered a building to steal something, or to commit another crime. For example, if the police respond to a house alarm and find the defendant inside a home and the defendant blurts out “I wasn’t going to hurt anyone. I was just looking for something to sell” to the police, this constitutes an admission that the defendant entered the home with the intent to commit theft.
This is one of the reasons we always recommend that you exercise your right to remain silent, and do not talk to law enforcement without an attorney present. Defendants often incriminate themselves due to the adrenaline of being caught committing burglary, or under the pressure of investigators.
In some cases, the prosecution can argue that the defendant’s actions were consistent with the intent to commit a crime. This is known as circumstantial evidence.
For example, if the defendant enters a building forcibly and is caught handling objects, it would be difficult to imagine that the defendant did not intend to steal something.
In some cases, the defendant may have had tools or other objects that suggest the intent to commit a crime. For example, if the defendant is caught in the midst of a home invasion and has brought large duffel bags, it can be ascertained that the defendant was going to commit theft.
Colorado criminalizes the possession of burglary tools such as crowbars, screwdrivers, or wire cutters in the crime of Possession of Burglary Tools, which is a Class 5 felony.
Although having these objects in your possession is not illegal, this crime is usually charged when the defendant is caught somewhere they should not be. In addition to incurring an additional charge, possession of some burglary tools (for example, a tool used to crack safes) could be used as evidence of criminal intent.
All of these are things that prosecutors will look for and use to their advantage if they can find them. Your job will be to work with someone knowledgeable and skilled enough to understand how to call their evidence and arguments into question and sufficiently raise doubts about your guilt.
Remember, the burden of proof is on the prosecution. They have to prove your guilt. You just have to create a reasonable doubt that you might not be guilty. That doesn’t mean it’s easy, but there’s always hope.
About the Author:
Since 2005, Jeffrey L. Weeden has been practicing criminal defense law in Colorado and has helped countless clients protect their rights and freedoms as a respected, caring, hard-nosed criminal defense attorney. Over the course of his career, Mr. Weeden’s work has been recognized in numerous ways, including being named to the Top 100 Trial Lawyers list by The National Trial Lawyers, earning a 10.0 “Suberb” Avvo rating, receiving Martindale-Hubbard’s highest peer review rating — AV Preeminent, and being asked to speak on several issues of interest to the legal community. Additionally, he is someone who cares deeply about his community and those in need, and is an active member of a number of professional legal organizations, including the Rocky Mountain Children’s Law Center and Law Firm Pro Bono Coordinators.