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-Ross W. Albers,Proven DUI Attorney

Fourth Degree Burglary in Maryland

Category: Maryland Criminal Defense
January 25, 2016

Arrested for fourth degree burglary in Maryland?  Contact the Law Office of Ross W. Albers to schedule a free consultation.  Remember, the State’s Attorney’s Office has the burden of proof beyond a reasonable doubt when you are charged with fourth degree burglary in Maryland.  Recently, I tried a case in Baltimore City where my client was charged with fourth degree burglary and conspiracy to commit fourth degree burglary.  The court granted my motion for judgment of acquittal after the Assistant State’s Attorney’s evidence, because the State failed to prove a key element of fourth degree burglary: breaking.

What are the elements of Fourth Degree Burglary in Maryland?

According to the Maryland Criminal Law Statue § 6-205, fourth degree burglary is defined as:

Prohibited – Breaking and entering dwelling
(a) A person may not break and enter the dwelling of another.
There are three elements of fourth degree burglary: (1) breaking, (2) entering, (3) dwelling of another.  So, the State’s Attorney’s Office must prove that the defendant committed a breaking, entering, and dwelling of another.  If one of the elements is missing, or unproven by the prosecutor beyond a reasonable doubt, then the State’s Attorney’s Office cannot prove its case against you.
In my Baltimore City case, I identified the “breaking” element as missing in the State’s case and moved for a judgment of acquittal after the State’s evidence.

What is the definition of “breaking” in Fourth Degree Burglary?

Breaking is an essential element of burglary.  One cannot be guilty of fourth degree burglary if found to be not guilty of the breaking.  A breaking occurs where there has been either an actual breaking or a constructive breaking.  Actual breaking occurs where physical force is applied.  An actual “breaking” may be made by opening a closed but unlocked door or by loosening, removing, or displacing any covering or fastening of the premises, such as lifting a latch, drawing a bolt, or raising an unfastened window.  Constructive breaking involves entry gained by artifice, fraud, conspiracy, or threat.
At common law, “breaking” requires a break of the dwelling by trespass and not simply an entrance by mere trespass.  Thus, “breaking” does not include an entrance through an open door or window or an entrance by a person having authority to do so at that particular time.
Herein lied the problem for the State’s Attorney’s Office in my client’s case.  The prosecutor could not produce any evidence or testimony they my client actually broke into the building, or tricked their way into the building.  While my client was likely guilty of trespassing, for some reason the State’s Attorney’s Office did not charge my client with trespassing.

Contact Westminster Maryland Criminal Defense Attorney Ross W. Albers to Schedule a Free Consultation

The Law Office of Ross W. Albers is located in Westminster, Maryland.  Carroll County Criminal Defense Attorney Ross W. Albers is a former Baltimore City prosecutor.  If you have been charge with fourth degree burglary in Maryland, then contact the Law Office of Ross W. Albers to schedule a free consultation today!

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