§ 28-507 — Burglary; penalty

Nebraska § 28-507

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value.
(2) Burglary is a Class IIA felony.

Legislative History

Source: Laws 1977, LB 38, § 106; Laws 2015, LB605, § 28. Annotations: 1. Breaking 2. Elements 3. Evidence 4. Intent 5. Lesser-included offense 6. Miscellaneous 1. Breaking It was not plain error for the trial court to not specifically instruct the jury that removal of an obstacle to entry was required to constitute breaking when trial court gave examples of the application of physical force which required the removal of an obstacle. State v. Greer, 257 Neb. 208, 596 N.W.2d 296 (1999). The opening of a closed door is a "breaking" within the definition of burglary. State v. Tyrrell, 234 Neb. 901, 453 N.W.2d 104 (1990). Evidence of any act of physical force by which the obstruction to entering is removed, such as opening a closed screen door to enter an apartment, is sufficient to prove a breaking under subsection (1) of this section. State v. Zemunski, 230 Neb. 613, 433 N.W.2d 170 (1988). Evidence of any act of physical force by which the obstruction to entering is removed, such as opening a closed screen door to enter an apartment, is sufficient to prove a breaking under this statute. State v. Sutton, 220 Neb. 128, 368 N.W.2d 492 (1985). Breaking requires both the use of physical force, however slight, and the removal of an obstruction to entering. State v. Greer, 7 Neb. App. 770, 586 N.W.2d 654 (1998). 2. Elements One commits burglary in violation of subsection (1) of this section when one, in the proscribed manner, breaks and enters any real property or improvements thereon with the proscribed intent; no actual theft or asportation of property is required. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989). 3. Evidence Circumstantial evidence is sufficient to support a criminal conviction if such evidence and reasonable inferences drawn from the evidence establish the defendant's guilt beyond a reasonable doubt. State v. Zemunski, 230 Neb. 954, 434 N.W.2d 520 (1989). 4. Intent Unless the State limits its burglary prosecution to establishing that the defendant intended to steal property, the State must specify which felony or felonies it believes the defendant intended to commit after the breaking and entering. State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011). Intent sufficient to support a conviction for burglary may be inferred from the facts and circumstances surrounding an illegal entry, and no actual theft or asportation of property is required. State v. Vaughn, 225 Neb. 38, 402 N.W.2d 300 (1987). 5. Lesser-included offense Criminal trespass in violation of section 28-520(1) is not a lesser-included offense of burglary as defined in subsection (1) of this section. State v. Gonzales, 218 Neb. 43, 352 N.W.2d 571 (1984). Criminal trespass is not a lesser-included offense of burglary. State v. Miller, 215 Neb. 145, 337 N.W.2d 424 (1983). 6. Miscellaneous Where this section did not require a mandatory minimum sentence, the fact that the punishments for crimes of burglary were enhanced under section 29-2221 did not require the enhanced mandatory minimum penalties to be served consecutively. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014).