Residential Burglary Defense

Under § 13-1507(A), a person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure "with the intent to commit any theft or any felony therein." The State has to prove both parts: the unlawful entry or presence, and the intent you had. Nothing has to be taken for the State to bring this charge.

The definitions in A.R.S. § 13-1501 decide many of the close questions:

• Residential structure (§ 13-1501(11)): any structure, movable or immovable, permanent or temporary, that is "adapted for both human residence and lodging whether occupied or not." A house, apartment or mobile home can qualify even if no one was home.
• Entry (§ 13-1501(3)): "the intrusion of any part of any instrument or any part of a person's body" inside the outer boundaries of the structure. Reaching through an open window can be enough.
• Enter or remain unlawfully (§ 13-1501(2)): being on the premises when your intent for being there is "not licensed, authorized or otherwise privileged."

First degree burglary under § 13-1508(A) adds one element. The State must prove that you or an accomplice "knowingly possesses explosives, a deadly weapon or a dangerous instrument" in the course of committing a theft or felony. Under § 13-1501(7), that period runs "from the moment of entry to and including flight from the scene of a crime."

A.R.S. § 13-105 defines a deadly weapon as "anything designed for lethal use, including a firearm." A dangerous instrument is anything that, under the circumstances in which it is used or threatened to be used, is "readily capable of causing death or serious physical injury." An ordinary tool is judged by how it was used or threatened to be used.

For a first felony offense that is not alleged as dangerous, A.R.S. § 13-702(D) sets these prison ranges:

If you are eligible for probation, A.R.S. § 13-901(A) allows the court to suspend the sentence and place you on probation. Under A.R.S. § 13-902(A), probation can last up to five years for a class 3 felony and up to seven years for a class 2 felony. The court must also order restitution "in the full amount of the economic loss" under A.R.S. § 13-603(C), and a felony fine can reach $150,000 under A.R.S. § 13-801(A).

The State may also allege that a first degree burglary is a dangerous offense, meaning it involved the "discharge, use or threatening exhibition" of a deadly weapon or dangerous instrument (§ 13-105). If that is found, prison is mandatory. For a first offense, A.R.S. § 13-704(A) sets 7 to 21 years for a class 2 felony, with 10.5 years presumptive, and § 13-704(G) bars probation and suspension of sentence. These ranges assume no prior felony convictions.

A defense starts with the elements the State must prove and the evidence it plans to use. Depending on the facts, we may focus on:

• Permission and privilege. Texts, keys, a lease, a family relationship or a history of visits can show that you were allowed to be there.
• Intent. Intent is often proven from circumstances. If you went inside to get your own belongings or to find someone, the evidence may not show intent to steal or to commit a felony.
• Whether it was a residential structure. A detached shed or a building still under construction may not meet the definition in § 13-1501(11), which can change the degree and the class.
• Identity. Doorbell video, fingerprints, DNA, phone location data and eyewitness accounts all have limits that can be tested.
• The weapon element. On a first degree charge, whether an item counts as a dangerous instrument, and who actually possessed it, can be contested.
• Procedure. We review how any search, identification or questioning was handled, and whether a motion to suppress may apply.

Mitigation matters too. Your history, restitution and treatment may support a plea to a lesser charge or a probation sentence. Your initial appearance happens within 24 hours of arrest, so early help can shape release conditions.