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Is it breaking and entering if you have a key? And if you are taking your own things?
Anonymous3 views3 answers
I was staying at my brother’s house because I was working with him on the weekends. I came home on a Monday and he fired me.
I had let him borrow a laptop (that was actually my girlfriend’s), and he had my mother's Xbox and her boyfriend’s converter box. Had he fired me while I was there, I would have taken my stuff then.
We have had family problems before, so knowing they wouldn't just give me my things, the next weekend I went to get my check and stopped at their house first. They had a guy staying there, so I woke him up. My mother and I used the keys we both had to take her stuff back. Now they are pressing charges.
Get an attorney.
You said that you were staying at your brother's house. Apparently, when he fired you, he also wrongfully evicted you. Legally, it sounds like you still had the right to possession of the home. Not only should you get an attorney and defend the charge, you should sue your brother for wrongful eviction and get money damages.
You cannot be charged for breaking and entering into a property where you had a right of possession, so that is the defense in the criminal case. You can force the issue in a civil case, which will probably muck it up enough for the prosecutor so that he or she might just dismiss the thing.
To be found guilty of this crime, the state has to prove that you used some force to gain entry (using the key to open the door would qualify) and they also have to prove that you intended to commit a larceny.
The second part poses some problems for the prosecution, since the only property taken was yours and your mom’s. Further, the fact that you had the key, assuming it had been given to you by your brother, and he knew you still had it and didn't demand it back, also allows for a reasonable conclusion that you still had implied permission to enter.
I would be somewhat surprised that the prosecution charged this case. Of course it is possible that your brother may be telling the police something different. If you’re charged, you should decline talking to the police and get an attorney.
If you did not have permission to enter the home, you can be prosecuted for a crime. If you did not take anything belonging to your brother and you entered the residence without permission, the likely charge is a misdemeanor charge of illegal entry (also known as entry without permission).
If you took something that did not belong to you when you entered your brother's home, and you did not have permission, the potential charge is a felony charge of Home Invasion 2nd Degree. If you had permission to enter the residence and you took something that did not belong to you, the potential charge is a felony for larceny in a building. If you entered with permission and retrieved your own property, no crime was committed.
You have a potential defense of consent for entering the property because you had a key, you had stayed there before, and the guy staying there let you in (if I am reading the facts you provided correctly).
It is always a shame when family pursues matters against family through a prosecutor's office. If you are charged with anything, you should hire an experienced criminal defense lawyer.
