Not every unlawful entry into a building is a trespass or a burglary. Oklahoma law differentiates between these crimes. If you or a loved one are being charged with any of these crimes, it is important to understand the charge and how it may differ from the others. Defenses to burglary and trespass in Oklahoma can often result in a charge of the lesser crime of entering without permission, a misdemeanor.
Entering Without Permission Defined
Oklahoma law defines entering without permission as either:
- Entering a building or other permanent or temporary structure such as a tent or booth, with the intent to commit a felony, larceny, or malicious mischief, but under circumstances not amounting to burglary, or
- Breaking and entering into a building or structure used as a dwelling without permission and without the intent to commit a crime inside. Okla. Stat. tit. 21 § 1438.
The crime is a misdemeanor punishable by a fine of up to $500, a year in jail, or both a fine and jail time. It can occur when a person enters a structure without permission but with an intent to commit a crime inside other than burglary. That crime can be a felony, larceny (theft), or malicious mischief (graffiti, or the like). It can also occur when a person breaks and enters a structure but has no intent to commit a crime inside.
Burglary Contrasted
Compare this to burglary. Legally, first-degree burglary in Oklahoma is defined as:
- breaking and entering a home or other dwelling while a person is inside, with the intent to commit a crime inside the dwelling by:
- Intentionally breaking a wall, door, window, or lock;
- breaking in while armed with a dangerous weapon or with the help of others;
- picking a lock or using a false key;
- lifting a latch; or
- opening a window. Okla. Stat. tit. 21 §§ 1431-1436.
Second-degree burglary in Oklahoma is similar. It occurs in a building or structure in which no person is present. Burglary is a serious crime in Oklahoma. The punishment for first-degree burglary is 7-20 years; second-degree burglary carries a maximum of 7 years in prison and third-degree burglary (breaking and entering into a car, vessel or structure with an intent to steal) can be punished by up to 5 years in prison.
Trespass Contrasted
In contrast, trespass is entering another’s property without permission or after being expressly forbidden. This can occur if a person enters another’s property after being warned by posted signs forbidding entry. This does not require any intent to commit a crime on the premises. Simply entering without permission is sufficient. Trespass in Oklahoma is a misdemeanor punishable by a fine from $50 to $250. If damage occurs or there is a theft, jail time from 30 to 180 days may be added to the fine. Okla. Stat. tit. 21 § 1835.
Intent is Key in Differentiating Between These Crimes
A person’s intent is key in differentiating between these crimes. Burglary is a specific intent crime. This means that in a burglary, the person must have a specific intent to commit a crime inside the building or structure before it is entered. The intent could be to steal, but it also could be to commit rape or assault and battery.
If a person enters without that intent or the intent is formed after entry, the crime isn’t burglary. The crime may be a trespass or illegal entry, not burglary. This could happen if someone dares a buddy to break into a person’s home for the purpose of a prank or a hazing but without the intent to commit a crime inside. Once inside, if the person sees a computer and decides to take it, the crime may be charged as illegal entry. The illegal entry statute is meant as a catch-all statute to be used when not all the elements of burglary can be proven.
Since burglary is a specific intent crime, a defense can be found in either voluntary or involuntary intoxication. The intoxication must be severe enough that the defendant could not have formed the required intent to commit a crime inside before the breaking and entering occurred. If a person is unable to form the intent to commit a crime inside, the crime may be charged as breaking and entering without permission.
Likewise, if the intent is formed but the conduct is not a crime, the crime may be charged under this same statute. So, say for example, that a person breaks and enters in order to get out of the cold and into a warm space, the crime is the lesser crime of breaking and entering without permission. Okla. Stat. tit. 21 § 1438.
In terms of the severity of the crimes charged, from least to most severe, the crimes are as follows:
- Trespass {misdemeanor)
- Breaking and Entering Without Permission (misdemeanor)
- Entering with intent to commit a crime other than burglary: Entering without permission (misdemeanor)
- Breaking and entering a vehicle with intent to steal or commit a felony: 3rd Degree burglary (felony)
- Breaking and entering an unoccupied dwelling or unoccupied commercial building with the intent to steal or commit a felony: 2nd-degree burglary (felony)
- Breaking and entering an occupied dwelling with intent to commit a crime: 1st-degree burglary (felony)
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