Aggravated burglary is a first-degree felony consisting of an ordinary burglary of a building (either commercial or residential) along with at least one other aggravating element. Under section 76-5-203, the aggravating element can be based on conduct that occurs while “attempting, committing, or fleeing from a burglary.” Aggravating elements generally include injury, weapons, or the threatened use of a weapon.
A charge of aggravated burglary is one of the most serious charges on the books in Utah, with penalties that can include a life prison sentence. If you are facing prosecution, contact us directly to see what the right criminal defense team can do for you.
Aggravating Elements in Utah Burglary Cases
There are three main groups of potential aggravating elements in a burglary case. These are broadly defined under Utah law to include:
- Bodily Injury – causing injury to any person who is not a participant in the crime;
- Weapon Use or Threat – using or threatening the immediate use of a dangerous weapon (the use or threat must be made against any person who is not a participant in the crime);
- Explosive or Weapon – attempting to use or even simply possessing any explosive or dangerous weapon.
Bodily Injury to Any Person
Section 203(2)(a) establishes “bodily injury” as an element that can support an aggravated burglary charge. This section specifically incorporates the definition found in section 76-1-101.5, which states that “bodily injury” means “physical pain, illness, or any impairment of physical condition.”
This is the same definition that applies to assault charges in Utah. However, unlike aggravated assault, an aggravated burglary charge does not require “serious” bodily injury. A charge of aggravated assault based on “serious” injury requires proof of serious permanent disfigurement, long-term loss or impairment of the use or function of any bodily member, or a substantial risk of death.
For an aggravated burglary charge, simple “pain” can support the necessary element. The evidence must still show “physical” pain. Ordinary emotional distress is not sufficient.
The element is further limited in that the injury must result to any person who is not a participant in the crime. So, for example, evidence that a co-defendant was injured during the burglary would not support the aggravating element. (Utah’s felony murder rule makes a similar distinction between participants and non-participants. Compare Utah Code section 76-5-203.)
Threatening or Using a Dangerous Weapon
Evidence of the use of any dangerous weapon or threatening the “immediate use” of a weapon against any person who is not participating in the crime can support an aggravating element in a burglary case. This language is similar to the “threat” element in an ordinary assault charge, which requires evidence that the actor “makes a threat, accompanied by a show of immediate force or violence, to do bodily injury to another.”
While there are differences in the language of the two elements, the similarities are sufficient that it is common that an assault involving a weapon, even with no actual injury, will be enough to elevate an ordinary burglary charge to an aggravated burglary..
Possess or Attempt to Use Any Explosive or Dangerous Weapon
Attempted use or even simply possessing any explosive or dangerous weapon during a burglary can be enough to support an aggravated burglary charge.
At first glance, the idea of an attempt to use may seem redundant with the idea of possession. It is, after all, difficult to attempt to use a weapon if a person does not first possess the weapon. But there are reasons for including both variations.
The aggravating element could potentially be supported by evidence that a person tried to disarm another person, or attempted to grab a weapon found inside the building while committing the burglary. If the person is successful in obtaining possession of the weapon, then the “possession” element is satisfied. But even if the person does not actually get possession of the weapon, their conduct could still be treated as an attempt to use the weapon.
Attempting, Committing or Fleeing
To support an aggravated burglary charge, the aggravating element must be committed while “attempting, committing, or fleeing from a burglary.” The conduct supporting the aggravating element can be committed either by the person who is charged, or by another participant in the crime (i.e., a co-defendant).
In essence, this section of the statute imposes criminal liability on one person for the actions of another person. Courts have sometimes justified this vicarious liability on grounds that the actions of the other person were foreseeable.
Finding the Right Criminal Defense Attorney
Burglary charges in Utah should be taken seriously. A conviction can have life-long consequences. The right defense attorney can make a real difference.
Contact us today to see how our defense team can help you.