Burglary is defined in New Hampshire Revised Statutes Annotated (RSA) 635:1. It is generally a class B felony, carrying up to 3-1/2 to 7 years in the state prison. If certain aggravating factors are present, burglary is a class A felony, carrying up to 7-1/2 to 15 years in prison.

Basic Definition of Burglary

Basically, burglary is two things: breaking into an "occupied structure or building," and committing a crime inside the building, which can be theft, vandalism (which is called "Criminal Mischief" in NH), assault or sexual assault of someone who is inside the building. To be burglary, the person has to have that intent to commit a specific crime at the moment that they enter the building. It's not a burglary if they form that intent later, while inside, e.g., they see a good bottle of liquor and impulsively decide to steal it. (Of course, that can be a hard sell to a jury....)

Aggravating Factors for Sentencing

Aggravating factors that will lead to higher potential prison sentences include:

  • committed in a "dwelling of another" (someone else's house) at night
  • accused was armed with a deadly weapon (if its a firearm, that becomes an even greater sentencing enhancement)
  • accused purposefully, knowingly or recklessly inflicted bodily injury on another

Possession of 'Burglary Tools'

Part of the burglary statute creates a misdemeanor offense for possession of "burglary tools." We've all seen those in the movies.... and in real life. Attorney Lothstein handled a restaurant burglary jury trial where the defendant was found hiding under a bush not far from the restaurant, with a pamphlet in his pocket containing "default safe codes." As it turns out, safes from certain manufacturers come with a default combination that is always the same, and many business owners are too lazy to reprogram the code...

Defenses to Burglary

Here are some defenses to burglary:

  • Accused had no intention to commit a crime when he or she unlawfully entered the building or occupied structure. For example, entered to seek shelter in a storm, or out of curiosity, thinking it was an abandoned building. In these situations, the accused may be guilty of the misdemeanor offense of Criminal Trespass, RSA 635:2, but is not guilty of burglary. We have handled many of these, usually a young person who breaks into an empty building, driven by a sort 0f thrill-seeking curiosity, but without any intention to commit a crime in the building.
  • Accused had intention to commit a crime, but did not unlawfully enter the building or occupied structure. For example, a neighbor is asked to check on a pet when the residents are away on vacation and while in the house, the neighbor steals something.
  • Accused's intoxication prevented him or her from forming the required "mens rea" (mental state). State v. Caldrain, 115 N.H. 390 (1975). In that case, the New Hampshire Supreme Court reversed conviction for burglary because the trial court failed to provide a jury instruction on the issue of intoxication as negating mental state.
  • The "premises" (generally a commercial building) is open to the public. In that case, a person going in to steal something is committing a theft, but not a burglary.
  • If a building is actually abandoned (as opposed to the accused mistakenly believing it was abandoned), this becomes a so-called "affirmative defense" - to win on this defense, the accused has to prove that the building was abandoned.

These aren't Defenses to Burglary

Here are some things that are not defenses:

  • Temporarily unoccupied is not a defense. Example: If the person has listed the property for sale and moved out so it presents as pristine to potential buyers, it's still a dwelling of another. State v. Gilley, 168 N.H. 188 (2015).
  • Intent to commit a weird or unusual crime is not a defense. Sure, most burglary is about stealing stuff inside the house, or assaulting a person inside the house. But in State v. Pepin (2014 unpublished order) the Court upheld a burglary conviction where the accused's intent in breaking into the building was to commit an act of contempt against family court orders.

Evidence Issues in Burglary Cases

An evidentiary issue that sometime comes up in burglary and other property crime cases is whether the accused's poverty, or addiction to drugs, is admissible to show motive to steal. The New Hampshire Supreme Court has held that the prosecution cannot introduce evidence of poverty as a motive, because even though it is relevant in the strictly-logical sense, it's prejudicial value substantially outweighs its probative value. State v. Gordon, 161 N.H. 140 (2011). But that same Court held that addiction to drugs can be admissible to prove motive in a burglary prosecution if prosecution can show that accused had no other means to support drug habit. State v. Gordon, 161 N.H. 410 (2009).

A burglary conviction, where the unlawful entry was for the purpose of committing theft, also counts as a theft conviction for purpose of laws that enhance criminal penalties for recidivists. Desrosia v. Warden, 149 N.H. 579 (2003).

We Handle Burglary Cases

We have handled many burglary cases, including to a full jury trial. In one of the most memorable of these, we got a not guilty based on a mistaken eyewitness identification defense. The burglar broke into a hotel room in a well-known hotel in the white mountains, thinking it would be empty, but to his surprise, there was a women in the room. He immediately ran and escaped, so there was not much opportunity to view him. During the police investigation, she was shown a photo lineup by a police detective and picked out a photo of Ted Lothstein's client. But then, she turned to the detective and said, "Did I get the right guy?" Of course, this revealed her lack of confidence in her identification, and the jury found the accused not guilty. It also is a story that reminds us of how critical body worn cameras are to the justice system. It would have been so easy for the detective to leave the victim's question out of his report, and so easy for the victim to forget (or choose to not remember) asking that question due to the passage of time, embarrassment, etc.....

If you, or someone you care about, needs representation in an alleged burglary case, fill out a form on this website or call us to schedule a free consultation.