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Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW
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The Oklahoma Legal Group Blog

First Degree Burglary Charges Dismissed

Adam Banner - Wednesday, July 09, 2014

We were able to secure another dismissal for a satisfied client charged with first degree burglary in Canadian County.

Our client was accused of first degree burglary for breaking into his sister's boyfriend's home to stop what he was told were allegations of domestic abuse. This case was a perfect example of law enforcement failing to deliver the entire story to the DA's office.

I have a great deal of respect for the Canadian County District Attorney's Office. They are very reasonable and usually fair-minded as a whole. Regardless it is hard for them to make  a fully informed decision as to charges when law enforcement does a lackluster job of presenting ALL the evidence that is relevant to the allegations in question.

A situation such as this is exactly where a skilled attorney can step into the picture and hopefully bring extrinsic facts into the equation that will give the prosecutor the information they need to make a fair assessment of the facts, and subsequently the charges, that should result from those facts. Everyone has to realize that the District Attorney's Office usually only makes their initial determination as to whether to press charges, and what charges they should bring, based on the information that law enforcement has put on their desks. If you are able to get an aggressive criminal defense attorney involved early in the prosecutorial process, there is a much better chance that the attorney can mitigate the evidence which has been presented to the prosecution.

Luckily, that is just what happened in this case. I was retained by the defendant's family as soon as the client was arrested. Consequently, I was able to meet with him in jail and get a better understanding of his recollection of what events actually transpired. Though I was not able to get all of the evidence to the prosecution before they initially charged my client with first degree burglary, I was eventually able to show the prosecution that the evidence more accurately presented a case of misdemeanor breaking and entering as opposed to the felony charge of burglary.

All in all, it was great result for everyone involved. 

However, since we are on the topic of burglary in Oklahoma, I have to take this opportunity to explain some of the common issues I run into when I have a client charged as such.

First and foremost, you can be charged with burglary even if you didn't "steal" anything. There is a common misconception out there that "burglary" only occurs when a person breaks into some place and steals some thing. Even though that situation could possibly be an example of burglary, those facts alone are not enough to support a conviction for first degree burglary. 

First degree burglary occurs when a person breaks into and enters the dwelling house of another, with the intent to commit some crime therein, while there is some other person present in the dwelling house. Some of those elements are terms of art which require an in-depth understanding of the law, but that is the gist of the charge. 

Consequently, one can also distinguish between first degree burglary and second degree burglary fairly easily. Second degree burglary technically occurs anytime a person breaks and enters into any building or any part of a building, room, booth, tent, railroad car, automobile, truck, trailer, vessel, or any other structure where property is kept. The differences here then, are that first degree burglary requires that the place which is broken into is a dwelling house and that some person is their while the breaking and entering is occurring. Neither of those two elements are necessary to constitute a charge for second degree burglary.

Also, since we are discussing the distinction between first and second degree burglary, we might as well outline the distinctions between those two crimes and another crime that is often lumped in with them: robbery.

I cannot stress this enough - - robbery is not burglary, and burglary is not robbery.

Robbery is a whole nother animal. A great way to frame the difference is to remember that burglary is more or less theft from an inanimate object (such as a home or car), whereas robbery is theft from an actual person. Specifically, robbery is the taking of personal property from the person or "immediate presence" of someone, against his or her will, through the use of force or fear.

When it all boils down, one can only be convicted of robbery if the prosecution can prove beyond a reasonable doubt that the accused person took a separate person's property from that separate person against his or her will. That means that the person from which the property was taken has to have actual knowledge of the taking. In fact, if it is clear that the taking was accomplished without the person knowing his or her property was taken, it is not robbery at all.

Heady stuff, right?

Okay, so not everyone gets off on the subtle differences between the elements of different crimes, but at the end of the day a basic understanding of the "legalese" used to describe certain criminal conduct never hurts. After all, if you start throwing words around without at least a partial understanding, you run the risk of putting a sign like this one up in your yard:

 

Nobody wants to be that person. A little knowledge can go a long way.






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