Burglary and the Target Offense

Burglary and the Target Offense

Burglary is complete at the threshold. Section 221.1(1) asks whether the actor enters a covered place with purpose to commit a crime inside, unless the premises are open to the public or the actor is licensed or privileged to enter.¹ The entry supplies the act, and the purpose supplies the mental state. The crime the actor has in mind appears in the text only as the object of that purpose, so the prosecution must prove what the actor meant to do, and the occurrence of the target crime is not an element. A burglary therefore exists even when the intended crime is never attempted, let alone finished.

Whether the actor may also be convicted of the intended crime, once the actor does act on the purpose, is the work of subsection (3). It provides that a person "may not be convicted both for burglary and for the offense which it was his purpose to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree."³ The rule comes first and the exception second. The rule is that the actor answers for one or the other: burglary, or the target offense, or an attempt at it, but never burglary plus either of the others. The exception lifts that bar when the additional offense, meaning the target offense or the attempt to commit it, is a felony of the first or second degree. The question the exception asks concerns the grade of that additional offense and not the grade of the burglary. Grading of burglary itself under § 221.1(2) is taught in a separate reading, and nothing here depends on it.

The two scenes differ in setting, but setting does no work under subsection (3). The variable that moves the result is the grade of the target offense: below the second degree, one conviction; first or second degree, both.

Each half of the provision has its own logic. The bar rests on the structure of burglary itself. Every element of the offense is a step toward some other crime, since the actor enters a place with a purpose to commit an offense there, and burglary operates much like a form of attempt with a lighter act requirement.⁵ When the actor goes on to commit or attempt that offense, a double conviction would punish one criminal objective twice, once for the step and once for the destination the step led to. The exception answers a different concern. A first- or second-degree felony carries wrongdoing that is distinct from the intrusion into a protected place, so the intrusion and the grave harm each warrant their own conviction and cumulative punishment.

The Code's rule departs from the more common approach, under which burglary is generally held not to merge into the completed offense, so the actor is punished for the crime committed and also for the burglary by which it was approached.⁶ That approach has a sharp consequence, because the penalty for burglary is usually far greater than the penalty for most of the offenses actually committed inside, and the stacked sentence can exceed what the crime inside would carry alone.⁷ The Code's drafters wanted to abolish burglary but found it too deeply embedded in legislatures' thinking, so they narrowed it instead.⁸ Barring a second conviction for an ordinary completed offense fits that narrowing choice. Students lose this issue when they carry the non-merger approach into the Code and treat a second conviction as automatic, because under § 221.1(3) the default is a single conviction and the first- or second-degree felony is the narrow exception.