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Wisconsin Statute 943.10 Burglary

Under common law, burglary was the breaking and entering into the dwelling of another at night with intent to commit a Felony therein. Wisconsin Statute 943.10 has expanded upon that definition. Wisconsin legislators removed the requirement that entry must be through a broken passage, expanded the dwelling to include commercial buildings and other structures, expanded the time to any time of the day or night, and included an intent to steal (theft) as well as a an intent to commit a Felony.

Definition of Burglary

A burglary occurs when a person intentionally enters any room within a structure used as a building or dwelling, an enclosed railroad car, an enclosed portion of any ship or vessel, a locked enclosed cargo portion of a truck or trailer, or a motor home or other motorized type of home or a trailer home, whether or not a person is living in the dwelling, with an intent to steal or commit a Felony therein and without consent of the person who has lawful possession of the dwelling.


The act of entering the structure must be intentional.

Evidence that the defendant walked around a private dwelling knocking on doors, then broke the glass in one door, entered, and when confronted offered no excuse, was sufficient to sustain a conviction for burglary. Raymond v. State, 55 Wisconsin 2d 482, 198 N.W.2d 351 (1972). The act of intentionally knocking, which then resulted in an entry was sufficient to prove burglary.

Committing A Felony Within

The burglar must have an intent to commit a Felony while in the burglarized structure. The intent can be to steal (a theft crime), or commit any Felony against a person or property (State v. O'Neill, 121 Wisconsin 2d 300, 359 N.W.2d 906 (1984)), and the jury need not determine which Felony was intended (State v. Hammer, 216 Wisconsin 2d 214, 576 N.W.2d 285 (Ct. App. 1997), 96-3084). While one cannot steal their own property, which was a point of argument for the O. J. Simpson visit to Las Vegas, the property must rightfully be theirs; otherwise, it is a theft. If the property is money, it must be the exact same dollar bills and coins (not in quantity, but by serial numbers such as those found on bills).

While intent to steal will not be inferred from the fact of entry alone, additional circumstances such as time, nature of place entered, method of entry, identity of the accused, conduct at the time of arrest, or interruption, and other circumstances, without proof of actual losses, can be sufficient to permit a reasonable person to conclude that the defendant entered with an intent to steal. (State v. Barclay, 54 WI 2d 651, 196 N.W.2d 745 (1972)).

Entry Without Consent

Entry need not be forced, but it must be without consent of the person in lawful possession of the property. However, the state need not prove that the defendant knew that his or her entry was without consent (Hanson v. State, 52 Wisconsin 2d 396, 190 N.W.2d 129 (1971). A burglary is completed after a door is opened and entry is made, even if the burglar changed his mind and started to leave the scene before arrested (Morones v. State, 61 Wisconsin 2d 544, 213 N.W.2d 31 (1973). Once proof of entry has been made, the burden to show consent is upon the defendant (LaTender v. State, 77 Wisconsin 2d 383, 253 N.W.2d 221 (1977).

Consent has a shelf life, so to speak, and it can be terminated or ended unless otherwise provided by the person having the lawful authority to give consent. An employer gives consent to employees to enter the workplace during working hours. A key to the building facilitates that consent, but that consent is granted during working hours (e.g. from the time the business opens until the time the business closes) as provided by the employer. If an employee enters the building after hours with improper intent, he may expose himself to burglary charges (State v. Schantek, 120 Wisconsin 2d 79, 353 N.W.2d 832 (Ct. App. 1984)).

Entry into a place during the time when it is open to the general public is with consent. However, remaining in that place after hours when it is no longer open to the general public is not with consent. In Levesque v. State (63 Wisconsin 2d 412, 217 N.W.2d 317 (1974)), the court held the defendant's act of hiding in a false ceiling of the men's room, perfected by false pretenses and fraud, rendered an otherwise lawful entrance into a restaurant unlawful.

Burglary by felon in possession

A person commits a burglary by entering premises with the intent of committing a Felony against a person or persons or against property while on the premises, regardless of whether the person's actions while within the premises constitute a new crime or the continuation of an ongoing offense. Felon in possession of a firearm is a crime against property or persons that may be an underlying Felony for a burglary charge (State v. Steele, 2001 WI App 34, 241 WI 2d 269, 625 N.W.2d 525, 00-0190).

Burglary Conviction: Presence Of Persons

A person convicted of a burglary is subject to the penalties provided for a Class F Felony (punishable by a fine not to exceed $25,000 or imprisonment not to exceed 12 years and 6 months, or both) if no person was present in the structure at the time of the burglary, or a Class E Felony (punishable by a fine not to exceed $50,000 or imprisonment not to exceed 15 years, or both) if a person was lawfully present.

Burglary Conviction: Armed Burglary

If the burglar either was armed upon entry or armed himself during the burglary with a dangerous weapon or pepper spray (any device or container that contains a combination of oleoresin of capsicum and inert ingredients, but does not contain any other gas or substance that could cause bodily discomfort), then he can be charged with Burglary as a Class E Felony, and is subject to the penalties of a Class E Felony.

Burglary Conviction: Burglary With Use of Explosive

The opening or attempt to open any depository by use of an explosive is a Class E Felony.

Burglary & Battery

If the burglar commits a simple battery upon a person who is lawfully present within the structure at the time of the burglary, it is a Class E Felony. If the battery upon another is more substantial than a simple battery (Substantial Battery, Aggravated Battery), then the burglar is subject to separate charges for battery (State v. Reynolds, 206 Wisconsin 2d 356, 557 N.W.2d 821 (Ct. App. 1996), 96-0265), and double jeopardy would not apply.

Burglary & Robbery

A burglary can occur without the property owner present while a robbery cannot.

Burglarious Tools Are Illegal To Possess

Under Wisconsin Statute 939.72, it is illegal to possess burglarious tools. A person can be prosecuted for both burglary and possession of burglarious tools (Dumas v. State, 90 WI 2d 518, 280 N.W.2d 310 (Ct. App. 1979).

Burglary Defense Attorney Mike Rudolph

Attorney Michael (Mike) Rudolph is one of Wisconsin's leading criminal defense lawyers. If you are under investigation and facing criminal charges for Burglary or Possession of Burglarious Tools, please call (920-730-8533) Attorney Mike Rudolph right away. Time is of the essence, and it is critical you communicate with your lawyer as soon as possible.

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