State v. Werner

Under 164.125 a person commits the crime of second-degree burglary if the person enters or remains unlawfully in a building with intent to commit a crime therein. However, the mere fact that a crime was committed is an insufficient basis for finding that the entry or remaining was without privilege or authority. The commission of a crime does not convert a lawful entry into an unlawful remaining.

Defendant assigns error to the trial court’s denial of his motion for a judgment of acquittal on the burglary count. Under 164.125 a person commits the crime of second-degree burglary if the person enters or remains unlawfully in a building with intent to commit a crime therein. “Enter or remain unlawfully” is defined as to enter or remain on the premises when the premises, at the time of such entry or remaining, are not open to the public when the entrant is not otherwise licensed or privileged to do so. The legislative purpose of burglary is to punish trespass for the purpose of committing a crime and intent is a necessary prospective. However, the mere fact that a crime was committed is an insufficient basis for finding that the entry or remaining was without privilege or authority. The commission of a crime does not convert a lawful entry into an unlawful remaining. Because the state failed to present legally sufficient evidence that defendant entered or remained unlawful the conviction for burglary reversed; remanded for resentencing; otherwise affirmed.