The Building Was Unoccupied. Is That Still Burglary?

The Building Was Unoccupied. Is That Still Burglary?

If you've ever read Ohio's burglary law, you might notice that divisions (A)(1), (2), and (3) state that a person commits the offense when they "trespass in an occupied structure." That may raise the question of whether it's an offense under this statute to enter a building or home when it's unoccupied, meaning no one was in it when the act occurred. The answer is it depends on the type of structure. But that doesn't mean such action isn't prohibited by law. You may still face criminal charges, just under a couple of different statutes.

What's an Occupied Structure?

Ohio Revised Code 2909.01 defines an occupied structure as follows:

  • A temporary or permanent dwelling – even if no one is in it at the time of the offense.
  • A temporary or permanent habitation – whether or not anyone is present at the time of the offense.
  • A space used for overnight accommodation – whether anyone is in it at the time of the offense.
  • A structure where people are present.

Now, looking at the above definitions, you may notice that a structure is considered occupied when it's a home or a place where people live. Additionally, such spaces are considered occupied regardless of whether or not someone is in it when the offense occurs. Thus, if you unlawfully enter a dwelling or habitation when it's technically unoccupied and you intend to commit a crime while there, you may be charged with burglary.

No One Was in the Building. What Charges Can I Face?

Suppose you unlawfully enter a building in which no people are present and you intend to commit a theft crime or felony while there. The building is not a home or a habitation, which means you may not face burglary charges, but you can be accused of breaking and entering as well as theft.

Under Ohio Revised Code 2911.13, a person commits breaking and entering when they:

  • By force, stealth, or deception,
  • Enter an unoccupied structure (emphasis added),
  • With the intent to commit a theft or felony therein.

This law specifically prohibits actions committed in an unoccupied structure.

Theft occurs when someone takes another person's property, without consent, and with the intent to deprive the owner of that object. This means if you steal something while you're in that unoccupied structure, you could also be charged with theft. It follows then that you can be accused of whatever felony you had intended to commit in addition to breaking and entering.

Are the Charges the Same for Burglary and Breaking and Entering?

Both burglary and breaking and entering are felonies but of different degrees. Depending on the circumstances, burglary can be a second- or third-degree felony, where the former is considered more serious than the latter. Breaking and entering is a fifth-degree felony, which is a lesser offense than second- and third-degree.

If you're facing criminal charges in Dayton, speak with a member of our team at Rion, Rion & Rion by calling (937) 223-9133 or submitting an online contact form. We'll aggressively defend you.

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