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Burglary & Aggravated Burglary

Utah Code Section: 76-6-201, 202

Elements

It is a common misconception that burglary is limited to the entry of a home or business to steal property.  The following is the statutory definition of burglary in Utah:

An actor is guilty of burglary who enters or remains unlawfully in a building or any portion of a building with intent to commit:

(a)a felony;

(b)theft;

(c)an assault on any person;

(d)lewdness;

(e)sexual battery;

(f)lewdness involving a child; or

(g)voyeurism under Section

 

Burglary is a separate offense from any of the offenses listed above, and which may be committed by the actor while in the building.

 

 

Aggravated Burglary

A person is guilty of aggravated burglary if in attempting, committing, or fleeing from a burglary the actor or another participant in the crime:

(a)causes bodily injury to any person who is not a participant in the crime;

(b)uses or threatens the immediate use of a dangerous weapon against any person who is not a participant in the crime; or

(c)possesses or attempts to use any explosive or dangerous weapon.

 

(3)As used in this section, "dangerous weapon" has the same definition as under Section 76-1-601.

Jail/Prison time, fines

Burglary is a third degree felony unless it was committed in a dwelling, in which event it is a second degree felony.

Aggravated burglary is a first degree felony.

A first degree felony is punishable by an indeterminate term of 5-life in the Utah State Prison, and a fine of $10,000, plus a surcharge.

A second degree felony is punishable by an indeterminate prison term of 1-15 years in the Utah State Prison and a fine of $10,000, plus a surcharge.

A third degree felony is punishable by an indeterminate prison term of 0-5 years in the Utah State Prison, and a fine of $5,000, plus a surcharge.

Definitions

 

"Building," in addition to its ordinary meaning, means any watercraft, aircraft, trailer, or other structure or vehicle adapted for overnight accommodation of persons or for carrying on business and includes:

(i)each separately secured or occupied portion of the structure or vehicle; and

(ii)each structure appurtenant to or connected with the structure or vehicle.

(b)"Building" does not include a railroad car.

"Dwelling" means a building which is usually occupied by a person lodging in the building at night, whether or not a person is actually present.

 

"Enter or remain unlawfully" means a person enters or remains in or on any premises when:

(a)at the time of the entry or remaining, the premises or any portion of the premises are not open to the public; and

(b)the actor is not otherwise licensed or privileged to enter or remain on the premises or any portion of the premises.

 

"Enter" means: (a)intrusion of any part of the body; or (b)intrusion of any physical object under control of the actor.

(5)"Railroad car": (a)in addition to its ordinary meaning, includes a sleeping car or any container or trailer that is on a railroad car; and (b)includes only a railroad car that is operable and part of an ongoing railroad operation.

"Dangerous weapon" means:

(a)any item capable of causing death or serious bodily injury; or

(b)a facsimile or representation of the item, if:

(i)the actor's use or apparent intended use of the item leads the victim to reasonably believe the item is likely to cause death or serious bodily injury; or

(ii)the actor represents to the victim verbally or in any other manner that he is in control of such an item.

Defenses

There are two basic defenses to burglary:

1. The defendant lawfully in the building or was given permission to be in the building.  This defense applies when persons are told by someone owning the building or occupying the building that they are allowed to enter the building.  However, case law is clear that if the defendant had an intent to commit a crime, then the Defendant has exceeded the scope of permission granted by the owner/occupant.

2. The defendant had no intent to commit a crime.  Intent can be formed after the person is in the home, so what began as a lawful entry/remaining on a property can become unlawful if intent is formed after the lawful entry.  If the State cannot prove that the Defendant had the intent to commit a crime within the building (an unexpected fight would be one example) then the Defendant is not guilty of burglary. 

 
Removal from Sex Offender Registry in 5 Years

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There is a possibility of removal from the sex offender registry within 5 years of the termination of the sentence (the end of probation) under the following conditions:

 

The offender was convicted of:

(1) Kidnapping, and the conviction is the only conviction for which the offender is required to register;

(2) Unlawful Detention, and the conviction is the only conviction for which the offender is required to register;

(3) Unlawful sexual activity with a minor and, at the time of the offense, was not more than 10 years older than the victim; or

(4) Unlawful sexual conduct with a 16 or 17 year old, and at the time of the offense, was not more than 15 years older than the victim;

 

Requirements:

(b)five years have passed since the completion of the offender's sentence;

(c)the offender has successfully completed all treatment ordered by the court;

(i)the offender has not been convicted of any other crime, excluding traffic offenses, as evidenced by a certificate of eligibility issued by the bureau;

(ii) "Traffic offense" does not include a violation of Title 41, Chapter 6a, Part 5, Driving Under the Influence and Reckless Driving;

(e)the offender has paid all restitution ordered by the court;

(f)the offender has complied with all the registration requirements at all times as required in this chapter, as evidenced by a document obtained by the offender from the Utah Department of Corrections, which confirms compliance; and

(g)the office that prosecuted the offender, and the victim, or if the victim is still a minor, the victim's parent, are notified and provided with an opportunity to respond in accordance with Subsection (3)(a).