First situation:

Out of curiosity about what the living room in a house looks like, you notice that while the inhabitants are not home a door is unlocked, so you enter and look at the living room and then leave.

If I understand correctly, that is tresspassing, which is a misdemeanor.

Second situation:

Same as above, but instead of curiosity about what the living room looks like, your purpose is to smash a flower pot that you happen to know is in the living room.

If I understand correctly, when this kind of trespass is for the purpose of committing some additional crime besides only trespass, then it's burglary, which is a felony.

Third situation:

Like the first situation above: your only motive is to see what the living room looks like. But while there, on a sudden whim, you decide to smash a flower pot that you see in the living room.

This time the trespass was not for the purpose of committing the additional crime, but still the additional crime happened and would not have been possible without the trespass.

Is it burglary then?

  • 4
    Jurisdiction? In some states, entering a unlocked house without intent to commit a crime is not a crime. Sep 21, 2017 at 21:28
  • 1
    It would depend upon the exact language of the penal statute in question and how it has been interpreted by the courts. There is almost certainly a split of authority among jurisdictions on this question globally, and probably among U.S. states as well.
    – ohwilleke
    Sep 22, 2017 at 22:38
  • 2
    A more common scenario would be one where someone is an invited guest into a home with no intent to commit a crime, is ordered to leave and does not right away (rendering them a trespasser) and then commits a crime like hitting someone or destroying property on the way out. Realistically, that would not usually be charged as burglary.
    – ohwilleke
    Sep 22, 2017 at 23:42

2 Answers 2


We need a jurisdiction, because burglary is a statutory crime. Since this is a residence, in Washington, under RCW 9A.52.025(1), the trespasser might have committed residential burglary:

A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.

While other states may have a provision requiring intent to commit a felony, or intent to commit a crime other than trespassing, the Washington statute does not say "felony" or "other than trespassing". A person can enter unlawfully by accident, or with no intention to be there unlawfully, in which case the person committed the act without the requisite criminal intent. If a person intends to enter but not remain, and they enter, they have committed the misdemeanor of trespassing. The question of whether unlawful entering with the intent to unlawfully remain satisfies the "intent to commit a crime" called for in the Washington statute has not been directly addressed in case law, as far as I know.

While the state generally shoulders the burden of proving beyond reasonable doubt the elements of the crime, in Washington, under RCW 9A.52.040, the accused may bear the burden of disproving intent (this is a permissive inference on the fact-finder's part):

In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.

This does not mean that the state shoulders no burden of proof regarding intent, according to State v. Newton:

A jury may, however, infer the defendant's specific criminal intent from his or her conduct if it is not "'patently equivocal'" and instead 'plainly indicates such intent as a matter of logical probability'

In this instance, the burglary conviction was overturned because

no evidence shows his intent was anything other than to show her she could walk

The relevant fact is that the accused was under the influence of PCP, and believed that God had told him that his disabled mother could walk, and he broke into the residence to tell her this.

Pursuant to State v. Bergeron where the conviction for attempted burglary was upheld, the court held that

The intent to commit a specific named crime inside the burglarized premises is not an "element" of the crime of burglary in the State of Washington... The intent required by our burglary statutes is simply the intent to commit any crime against a person or property inside the burglarized premises

The court observed in this case that "there is absolutely no evidence in the record to prove what specific crime it was the defendant intended to commit inside".

What distinguishes Bergeron from Newton (the latter, not precedential, citing the former) is that there was a good case that Bergeron had an intent to commit some crime, though not a specific identifiable crime; but for Newton, there was no evidence that defendant intended to commit any crime whatsoever, even remaining unlawfully. In the hypothetical instance, the fact that the criminal smashed a vase is evidence of an intent to commit a crime (destruction of property). It's unlikely that a mere assertion "I just did that on the spur of the moment" would carry any weight. If the circumstances make it more likely that he entered intending to do something wrong, such as vandalism, the elements of burglary are present/

If the defendant claims some innocent reason for trespassing, such as escaping a riot, he may avail himself of a defense (RCW 9a.52.090) that

The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain

If there is no evidence of a riot, such a defense is not credible. Alternatively, if the house is for sale, the "I thought it would be okay" defense is more credible.



May a person, who enters a property without due authorization be charged for Burglary should he damage property once inside, absent any such intention to do so,either before or after entry ?


No,lacking the intent to commit a felony, or to steal, a person who enters a property cannot be charged for Burglary for damaging property.


1.Criminal intent, mens rea, is an element of almost all crimes. Lacking an intent or lacking the proof of intent to commit a crime, it is not possible for the {State} to prove that a crime was committed.

2.At the instant the person entered the property,there was no intent to trespass,at most, it could be treat as civil trespass, not even misdemeanor (Case 1).

3.Proving intent in either civil or criminal context is inherently difficult and this element,viz intent, has to be proved beyond a reasonable doubt.Intent evidence needs to touch applicable rules of evidence and does not exisit in vaccum. There is no direct admission of either trespassing or destroying property, no witnesses, no video or anything.

  1. Intent relates to the condition of mind of the person who commits the act, his or her purpose in doing it. Here, there is nothing that leads one to believe that the person willingly, intentionally, recklessly or negligently entered and smashed the pot and had formed a purpose in their mind, other than to see the property.(Culpability)

  2. The law recognizes two types of intent, general intent and specific intent.

(a) General intent General intent is the intent to engage in conduct. Thus, in this case, can the state to prove that the defendant actually did intend the precise harm or the precise result which eventuated ? For the state to build its case, State will be required to prove that the defendant intentionally and not inadvertently or accidentally engaged in (his/her) actions. In other words, the state must prove that the defendant’s actions were intentional, voluntary and knowing rather than unintentional, involuntary and unknowing.(We are unable to prove that the person had the intent to engage in any conduct other than enter and see the property)

(b) Specific intent Specific intent is the intent to achieve a specific result. A person acts ”intentionally” with respect to a result when (his/her) conscious objective is to cause such result. What the defendant intended here is to simply view the property and leave. He never had the intent to achieve the goal of property destruction. Hypothetically, the defendant may have swung the pot to prevent a killer bee or swat a spider which may have required or resulted in the pot being smashed.(The only specific intent formed appears to be entering the property but even that could be questioned - The property was open and vacant and the person may have taken shelter to save his life.)

California Case laws interpreting Trespassing and Intent

In a real life case in California, the fact pattern matches the scenario posted.The parents of girl and guy would not let them hang out together at either of their homes, so the couple would hang out at a clubhouse. On one occassion, one of them broke open the clubhouse door to hang out for one hour.State charged them for felony trespass. On appeal,conviction for trespass and vandalism was reversed on two grounds.

  1. Lacking continuous type of possession with some degree of dispossession and permanency, there is no trespass.(transiting is not trespassing.)
  2. Lacking specific intent to agree to conspire,there is no conspiracy.(no intent-no crime.)

People v. Y.R. (2014 DJDAR 7067)- Club house felony trespass reversed.

People v. Wilkinson (1967) 248 Cal. App. 2d Supp. 906, 910-911 - Sleeping on ranch is not trespassing.

  • 1
    "Criminal intent, mens rea, is an element of almost all crimes" is simply not true. Most jurisdictions have many strict liability offences where the criminal's state of mind (or knowledge of the crime) is irrelevant. Many also accept that the criminal actions themselves allow a (rebuttable) assumption of mens rea by the prosecution.
    – Dale M
    Sep 22, 2017 at 5:23
  • "No, lacking the intent to commit a felony, or to steal, a person who enters a property cannot be charged for Burglary for damaging property." Absolutely not true in all jurisdictions. Sep 22, 2017 at 19:26

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