What’s the Difference Between Trespass and Burglary in SC?

Burglary charges in SC can carry a sentence of up to life in prison, while a trespass conviction carries a maximum penalty of 30 days in jail. So, what is the difference between trespass and burglary in SC?

Burglary involves entering a dwelling or building without consent. Trespass involves going onto someone’s property, including going into a dwelling or building, without consent. Life in prison for one, 30 days for the other, what gives?

A woman in Ohio was recently arrested and charged with burglary “after she entered a home, pet the victim’s dog and washed the dishes.”

Deputies said they received a call about a burglary about 9 a.m. Monday in Hamden. The victim said the suspect entered the home and sat on the couch to pet the family dog. The victim said the suspect then washed the dishes and left the home. The victim said they did not know the suspect and that she was acting very strange.

In SC this would, at most, be trespass, not burglary. Furthermore, she could not even be convicted of trespass unless she had been given notice that she would be trespassing in the home. Police should either let her go or, if she is suffering from mental illness, find help for her…

What is the difference between trespass and burglary, then? How can a criminal defense lawyer show that burglary charges are unjust and that a trespass charge is appropriate? Is trespass a lesser included offense of burglary in SC, which would allow a jury to convict someone for trespass instead of burglary?

Burglary in SC Requires Intent to Commit a Crime

The main difference between trespass and burglary charges in SC is that burglary requires an intent to commit a crime at the time the person enters the dwelling or building.

Another difference is that trespass can occur on someone’s property, indoors or outdoors, while burglary requires entry into a dwelling or building.

What are the Elements of Burglary In SC?

Burglary in SC requires that a person:

  1. Enter a dwelling or building;
  2. Without consent; and
  3. With the intent to commit a crime in the dwelling or building.

Whether a burglary charge is 3rd degree burglary, which carries up to five years in prison, or 1st degree burglary, which carries up to life in prison, depends on whether it was a dwelling (where someone lives) or a building (a shed or storage unit), as well as whether aggravating factors are present (for example, did it happen at night, was a weapon involved, was anyone hurt during the alleged burglary, and does the accused have prior convictions for burglary or housebreaking).

Whether a crime is actually committed inside the home or building does not matter, as long as the prosecution proves that you intended to commit a crime at the time of the entry – although larceny (stealing something) is the most common crime that is alleged, intent to commit any crime will do. For example, assault and battery, sexual assault, or destruction of property could be the crime that is alleged by the prosecution.

How can anyone know what a person intended? If there is evidence such as missing property, evidence that the home was searched, or a separate crime is actually committed inside the residence or building, that will most likely be enough to support the “intent to commit a crime inside” element of burglary.

But wait, trespassing is a crime. What if the only crime committed was trespassing?

Can a Burglary Charge in SC be Based on the Intent to Trespass?

If you enter a home without permission, you may be trespassing (or you may not – trespass in SC requires prior notice). One element of burglary is the intent to commit a crime inside the home or building. Trespassing is a crime. So, can you be convicted of burglary based on an alleged intent to trespass?

Trespass alone is not enough to satisfy the “intent to commit a crime” element of burglary in SC – there must be an intent to commit another crime. Otherwise, just about everyone who commits a criminal trespass, punishable by no more than 30 days in jail, could also be charged with burglary and face up to life in prison…

SC courts have said that the intent to commit another crime can be inferred from trespassing, however. But, are you trespassing if you have not received a “trespass notice?”

Trespass in SC Requires Notice

If you have never been put on notice that you would be trespassing if you enter a particular property, then you are not trespassing under SC law.

On the other hand, if you receive either written or verbal notice from the property owner or law enforcement or if the property is marked with clearly visible “posted” or “no trespassing” signs, you can be convicted of trespass if you go onto that property.

SC courts have held that trespassing after notice is admissible evidence in a burglary trial and that jurors can infer from the fact that you are trespassing that you intended to commit another crime while in the home or building.

Is Trespass a Lesser-Included Offense of Burglary in SC?

If you are charged with burglary first degree and facing life in prison, wouldn’t it be nice if jurors were instructed by the court that they could instead find you guilty of the lesser-included offense of trespass?

This is not an option in SC, however. Because the elements of burglary (entry into a dwelling or building with intent to commit a crime) and the elements of trespass (entry onto property which may include land and no intent to commit a separate crime) are different, trespass is not a lesser-included offense of burglary in SC.

Criminal Defense Lawyer in Charleston, SC

Grant B. Smaldone is a criminal defense lawyer based in Charleston, SC who defends state and federal criminal cases in the Eastern SC area, including burglary and trespass charges.

If you have been charged with a crime in state or federal court in SC, call now at (843) 808-2100 or contact us online to talk to a Charleston, SC criminal defense attorney today.


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