Imagine this scenario:
Marcy, the wife of a landlord, calls up Tony, one of their tenants, to remind Tony his rent is past due. Tony is fed up with Marcy’s phone calls, and thinks he should not have to pay rent at all because the apartment’s heating has not been working properly.
Tony and Marcy raise their voices at each other, and finally, Tony calls Marcy a “stuck up bitch” that lives in an “ivory tower.” He also tells her she can “drop dead,” and he’s not going to pay her any “damned rent” until the f***ing heater is fixed. He also tells her that she’s married to a slumlord.
Marcy then calls her husband, Mark, the legal owner of Tony’s apartment, and tells him about the heated exchange, and is outraged. Mark, who was already at the apartment complex (replacing a broken window for another tenant), rushes to Tony’s place, then beats on the door of Tony’s apartment, and when Tony opens it, Mark instantly slaps him. Tony was just barely inside the apartment when this happened.
Then Mark bellows, “Let that be a lesson to you punk for speaking to a pregnant woman with such disrespect!” Tony gets a slight red mark on his face from Mark’s slap, but other than that, he has no injury. Tony tells Mark he slaps like a girl, then Mark leaves. Tony, a tough guy, does not call the police, nor does he seek any medical attention.
Michael, a neighbor, hears the commotion and calls the police. The police arrive about an hour later and get Mark and Tony together. Tony admits he lost his cool and should not have insulted Marcy the way he did. Mark’s expecting to get a mere warning because Tony admits the slap didn’t really hurt that much.
The police then cite Mark with a first degree felony (five to life). Mark can’t believe it. Mark’s told by the police that he 1) illegally entered a dwelling of another, 2) with the intent to commit an assault, and 3) he did in fact commit an assault, which is why he’s committed first degree felony burglary. The police explain that if Mark had slapped Tony the same way in the parking lot, it would have just been a simple assault, a class B misdemeanor. Mark is certain that law can’t be that technical.
Are the cops right? Can an owner of an apartment be charged with burglary for going into his own building by about five inches? According to the Utah Supreme Court that answer is yes. This is because the tenant, not the landlord, had the right to possess the apartment, and even though Mark’s hand only slightly went into the dwelling, that was enough, and the red mark showed “an injury.” Mark should hire an highly skilled attorney immediately.
. . . And that can even be the case if one enters his own home.
In State v. Machan, (2013 UT 72, ¶ 13) the Court stated that “Wesley Machan was charged with aggravated burglary, aggravated assault, and commission of domestic violence in the presence of a child after he entered a home he owned with his estranged wife and brandished a rifle.”
The Court stated that Mr. Machan had “been arrested and removed from the home six months prior to this incident and had been living in a separate residence due to a restraining order against him.” However, “three weeks prior to his entry into the home, the restraining order expired.” Fortunately for him, that magistrate at the preliminary hearing ruled that Mr. Machan could not be prosecuted on the aggravated burglary charge because there was insufficient evidence that he had given away his “possessory interest” in the home to render his entry unlawful within the meaning of Utah’s burglary statute.
The Utah Supreme Court stated that the magistrate was correct. They stated that “although an estranged spouse may implicitly relinquish his or her possessory rights to the marital home by voluntarily establishing a separate residence, the State did not produce evidence of voluntary relinquishment in this case.”
So, had Machan person gotten his own apartment, and it looked like he had “moved out,” things may have gone very badly for him. In other words, the Court made it clear that “a title owner of a dwelling is not always privileged to enter the premises.”
In other words, cases like this are normally highly dependent on the facts.
Now, if you simply shove a person on the sidewalk, you could be looking at a simple assault, which is a class B misdemeanor (up to six months in jail). In Utah, an assault is (a) an attempt, with unlawful force or violence, to do bodily injury to another; (b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or (c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another. § 76-5-102.
But when you illegally enter the dwelling of another, things become much more serious. Here is how the Utah law reads: “An actor is guilty of burglary who enters or remains unlawfully in a building or any portion of a building with intent to commit: (a) a felony; (b) theft; (c) an assault on any person; (d) lewdness, a violation of Section 76-9-702;(e) sexual battery, a violation of Section 76-9-702.1; (f) lewdness involving a child, in violation of Section 76-9-702.5; or (g) voyeurism under Section 76-9-702.7. Utah Code Ann. § 76-6-202.
So, if a person steals something from Walmart and says, “Yeah, I admit I went there to steal,” he could be looking at felony burglary, even if he only went into the store to steal a single pack of chewing gum!
So, before you enter a building to commit a felony, assault, theft, etc., think again. Entering a building drastically changes things.