K. Burglary and Related Offenses

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

K. Burglary and Related Offenses

1. Common Law Burglary and Early Statutory Offenses

Until 1985, in South Carolina, burglary was exclusively a common law offense, State v. Branham, 13 S.C. 389 (1880), with the penalty determined by statute as life imprisonment unless the jury should recommend mercy in which case the penalty was no less than five years incarceration. S.C. Code Ann. § 16-11-310 (1976). Burglary is a felony. S.C. Code Ann. § 16-1-10 (Supp. 2012). The elements of common law burglary include "the breaking and entering of the dwelling house of another, in the night-time, with the intent to commit a felony therein . . . ." State v. Clamp, 225 S.C. 89, 98, 80 S.E.2d 918, 922 (1954). As of 1981, an intent to commit either a felony or a misdemeanor would suffice. State v. Brooks, 277 S.C. 111, 283 S.E.2d 830 (1981). '

Because a person who satisfies all the elements of common law burglary also would satisfy the elements of first degree burglary as per S.C. Code Ann. § 16-11-311 (2003), "common law burglary is legally the equivalent of burglary, first degree." State v. Washington, 338 S.C. 392, 397, 526 S.E.2d 709, 711 (2000). Consequently, a conviction of common law burglary qualifies as a "most serious" offense and triggers the recidivist provisions of S.C. Code Ann. § 17-25-45 (Supp. 2012).

Common law burglary was closely related to the statutory offenses of housebreaking which were considerably broader than burglary. The more serious of the two applied to breaking and entering committed during daytime; the less serious proscribed the day and nighttime breaking and entering of houses other than dwelling houses. S.C. Code Ann. § 16-1-320 (1976). This statutory offense was repealed in 1985 when the current burglary statute was enacted. The current burglary statutes do not, however, repeal common law burglary.

Housebreaking was declared to be a lesser included offense of burglary in State v. Suttles, 279 S.C. 87, 302 S.E.2d 338 (1983), with the result that indictment for the latter would support conviction of the former. This is so even though common law burglary must be committed in the nighttime, while housebreaking may occur in the daytime. The Court reasoned that the Legislature intended the statutory offense of housebreaking to cover all those situations in which the state could not establish that the crime occurred at night, including those in which the time was uncertain: that is, those which might have been either in day or night. Id.

A few months after Suttles, the Court concluded that double jeopardy would preclude a conviction of attempted burglary of a person previously acquitted of attempted housebreaking. State v. Dobson, 279 S.C. 551, 309 S.E.2d 752 (1983). In Dobson, the trial court judge had directed a verdict of acquittal on the initial charge of attempted housebreaking because the evidence indicated that the breaking had taken place at night. While the directed verdict seems consistent with State v. Sweat, 221 S.C. 270, 70 S.E.2d 234 (1952), Sweat's continued validity may have been undermined by the expansive interpretation of the housebreaking statute in Suttles.

Another offense closely related to both burglary and housebreaking was privily stealing from a house. "The offense of privily stealing from the person or of privily entering and stealing from any house, in the nighttime or daytime, shall in all cases be deemed and adjudged grand larceny and subject to the same punishment." S.C. Code Ann. § 16-13-20 (1985). This offense was repealed effective January 1, 1994. Several similarities to, and differences from, the more common offenses should be noted. Unlike burglary and housebreaking, this crime was not committed unless a theft actually took place. Burglary and housebreaking require only the intent to commit larceny or any other crime. Like housebreaking but unlike burglary, privily stealing from a house could be committed in the daytime; like burglary it could also be committed at night. According to State v. Logan, 279 S.C. 345, 306 S.E.2d 622 (1983), the offense of privily stealing from a house could be committed even though the house was a public place of business and even though the entry was accomplished through force. The authority for the latter point is questioned in section B.8. Privily Stealing, supra.

2. The Current Burglary Statute

The offense of burglary was substantially amended and codified in S.C. Code Ann. §§ 16-11-310 to -313 (2003), effective June 20, 1985. The same act repealed the old housebreaking statute, § 16-11-320 (1976). There are now three degrees of the crime. Highlights of the new burglary statutes include an expanded definition of dwelling and building, rejection of the requirement of a breaking, and substantially increased penalties.

One charged with burglary, or presumably any other offense, has a right to be tried in the county in which the crime is alleged to have been committed, but the right is not jurisdictional and may be waived. State v. Evans, 307 S.C. 477, 415 S.E.2d 816 (1992), overruled by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005). Evans is discussed in more detail in Chapter I.E., Jurisdiction, supra.

a. First Degree Burglary

First degree burglary involves entry of a dwelling without consent and with intent to "commit a crime in the dwelling, and either":

(1) when, in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime:

(a) is armed with a deadly weapon or explosive; or
(b) causes physical injury to a person who is not a participant in the crime; or
(c) uses or threatens the use of a dangerous instrument; or
(d) displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm; or

(2) the burglary is committed by a person with a prior record of two or more convictions for burglary or housebreaking or a combination of both; or
(3) The entering or remaining occurs in the nighttime.

S.C. Code Ann. § 16-11-311(A) (2003).

The element of aggravation must be alleged in the indictment. As this relates to subject matter jurisdiction, any motion to dismiss the indictment for failing to allege this necessary element must be made before the jury is sworn. Mathis v. State, 355 S.C. 87, 584 S.E.2d 366 (2003), as modified by State v. Gentry, 363 S.C. 93, 610 S.E.2d 494 (2005). See discussion of Gentry in Chapter I.E.1.b.

This felony is punishable by imprisonment from 15 years to life. No portion of any sentence imposed for first degree burglary may be suspended as § 24-21-410 has been interpreted to prohibit suspension of sentences if the maximum sentence that may be imposed is death or life imprisonment. State v. Jacobs, 393 S.C. 584, 713 S.E.2d 621 (2011). First degree burglary is designated a violent crime by S.C. Code Ann. § 16-1-60 (Supp. 2012). See Chapter I.C.5., Violent Crime. Under the Crime Classification Act of 1993 first degree burglary is exempt from classification. Effective January 1, 1996, a sentence to life for first degree burglary is a no parole offense, and all first degree burglary convictions are "most serious offenses." S.C. Code Ann. § 17-25-45(c)(1) (Supp. 2012) (effective Jan. 1, 1996). See Chapter I.C.6., No Parole Offenses and I.C.7. "Most Serious Offenses" and "Serious Offenses," supra. First degree burglary is a no parole offense unless the sentence is to life imprisonment. If the actual sentence is life in prison, the 85% rule does not apply, S.C. Code Ann. § 24-13-150(A) (Supp. 2012); the burglary statute itself provides that "'life' means until death." S.C. Code Ann. § 16-11-311(B) (2003).

One who, while committing burglary, seizes a deadly weapon in the dwelling being burgled is, as a result of that seizure, "armed with a deadly weapon" and is therefore guilty of first degree burglary. State v. McCaskill, 321 S.C. 283, 468 S.E.2d 81 (Ct. App. 1996).

Subpart (2) of first degree burglary concerns burglary by one with two prior convictions for burglary or housebreaking. Because the prior conviction is an element of the offense, evidence of the prior convictions is admissible regardless of whether that evidence would be admissible as prior bad act evidence as per State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). State v. Hamilton, 327 S.C. 440, 486 S.E.2d 512 (Ct. App. 1997), cert. denied, 525 U.S. 904 (1998). A prior conviction of common law burglary will suffice. State v. Washington, 338 S.C. 392, 526 S.E.2d 709 (2000). The State need not accept the defendant's offer to stipulate to the existence of the prior convictions and may introduce evidence of them. State v. Benton, 338 S.C. 151, 526 S.E.2d 228, cert. denied, 530 U.S. 1209 (2000). Evidence of prior convictions admitted to prove this element of the offense must, on request, be accompanied by appropriate limiting instructions that the jury is not to consider the evidence on the question of whether he committed the currently charged offense. Id.

While, under the strict terms of the statute, the State is not limited to evidence of only two prior convictions to establish first degree burglary, see State v. James, 346 S.C. 303, 551 S.E.2d 591 (Ct. App. 2001) (affirming a conviction in which the State introduced evidence of seven prior convictions of burglary), admission of more than two convictions runs the significant risk that the prejudicial effect of the evidence outweighs its probative value. The Supreme Court reversed the Court of Appeals in James finding that admission of the seven prior convictions was unnecessary and unduly prejudicial under Rule 403, SCRE. State v. James, 355 S.C. 25, 583 S.E.2d 745 (2003). The Court sided with Judge Shuler's concurrence in the lower appellate court, that the admissibility of prior convictions under the statute "should be examined under the traditional rules of evidence." Id. at 34, 583 S.E2d at 749. The Court went on to admonish trial courts to "limit the evidence to the prior burglary and/or housebreaking [to two...