Written by attorney Carl A Munson JR

How shoplifting can get you charged with Burglary

If you have been trespassed from a grocery store, mall or other business, it is very important that you obey the trespass notice. If you return to the business in violation of the notice, you obviously risk being arrested for First Degree Criminal Trespassing. In Washington, First Degree Criminal Trespassing is a gross misdemeanor. The maximum penalty for that offense is 365 days in jail and up to a $5000. That is quite a hefty risk for returning to a place that does not want you there and has told you so.

To be convicted of First Degree Trespassing you must enter or remain unlawfully in a building. When the store or business trespasses you, your invitation has been revoked and you no longer have permission to be there. Enter, and you enter unlawfully.

However, your situation could get much worse very quickly if you return to that business and shoplift or attempt to shoplift (or commit any other crime while there for that matter). Should you make the mistake of returning after being trespassed with the intent to commit any crime, your charge of a gross misdemeanor trespass has just skyrocketed to a class B felony; a Second Degree Burglary. The maximum penalty for a class B offense in Washington is 10 years in prison and up to a $20,000 fine. Your actual sentence range depends on your criminal history.

To be convicted of a Second Degree Burglary, you must enter or remain unlawfully in a building, with the intent to commit a crime against persons or property therein. As mentioned above, if you have been previously trespassed from a particular location and then return to that location, you are entering and/or remaining unlawfully. That's step one.

You may be thinking to yourself, "But what if I'm not planning on shoplifting or committing any other crime while there? How could they prove intent?" Good question. The answer starts with a statute in the Revised Code of Washington (RCW). That statute is RCW 9A.52.040 and is entitled "Inference of Intent". It reads: In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.

What that means is, the trier of fact (either a judge or jury) may infer the intent to commit a crime inside the building or store simply by the fact that you are entering that building or store unlawfully. The prosecution does not need to present any additional evidence of intent. That makes proving a burglary under these circumstances a little easier for the prosecutor.

The statute does say, however, that the trier of fact may infer intent unless such entering or remaining shall be explained by sufficient evidence to satisfy the trier of fact that the entering/remaining was made without criminal intent. That means you or your lawyer will have to present evidence that you did not intend to commit a crime after entering unlawfully and hopefully you have something else to present to the judge or jury other than just saying so.

Although that defense is available, as you can guess, it is risky. Especially considering the unpredictability of juries. The safer, less risky alternative is to simply avoid entering that building or shop in the first place.

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