943.10 Burglary.

(1g) In this section:

(a) “Boat" means any ship or vessel that has sleeping quarters.

(b) “Motor home" has the meaning given in s. 340.01 (33m).

(1m) Whoever intentionally enters any of the following places without the consent of the person in lawful possession and with intent to steal or commit a felony in such place is guilty of a Class F felony:

(a) Any building or dwelling; or

(b) An enclosed railroad car; or

(c) An enclosed portion of any ship or vessel; or

(d) A locked enclosed cargo portion of a truck or trailer; or

(e) A motor home or other motorized type of home or a trailer home, whether or not any person is living in any such home; or

(f) A room within any of the above.

(2) Whoever violates sub. (1m) under any of the following circumstances is guilty of a Class E felony:

(a) The person is armed with a dangerous weapon or a device or container described under s. 941.26 (4) (a).

(b) The person is unarmed, but arms himself with a dangerous weapon or a device or container described under s. 941.26 (4) (a) while still in the burglarized enclosure.

(c) While the person is in the burglarized enclosure, he or she opens, or attempts to open, any depository by use of an explosive.

(d) While the person is in the burglarized enclosure, he or she commits a battery upon a person lawfully therein.

(e) The burglarized enclosure is a dwelling, boat, or motor home and another person is lawfully present in the dwelling, boat, or motor home at the time of the violation.

(3) For the purpose of this section, entry into a place during the time when it is open to the general public is with consent.

History: 1977 c. 173, 332; 1995 a. 288; 2001 a. 109; 2003 a. 189.

Stolen items may be introduced in evidence in a burglary prosecution as the items tend to prove that entry was made with intent to steal. Abraham v. State, 47 Wis. 2d 44, 176 N.W.2d 349 (1970).

Since attempted robbery requires proof of elements in addition to those elements required to prove burglary, they are separate and distinct crimes. State v. DiMaggio, 49 Wis. 2d 565, 182 N.W.2d 466 (1971).

The state need not prove that the defendant knew that his or her entry was without consent. Hanson v. State, 52 Wis. 2d 396, 190 N.W.2d 129 (1971).

The unexplained possession of recently stolen goods raises an inference that the possessor is guilty of theft, and also of burglary if the goods were stolen in a burglary, and calls for an explanation of how the possessor obtained the property. Gautreaux v. State, 52 Wis. 2d 489, 190 N.W.2d 542 (1971).

An information is defective if it charges entry into a building with intent to steal or to commit a felony, since these are different offenses. Champlain v. State, 53 Wis. 2d 751, 193 N.W.2d 868 (1972).

While intent to steal will not be inferred from the fact of entry alone, additional circumstances such as time, nature of place entered, method of entry, identity of the accused, conduct at the time of arrest, or interruption, and other circumstances, without proof of actual losses, can be sufficient to permit a reasonable person to conclude that the defendant entered with an intent to steal. State v. Barclay, 54 Wis. 2d 651, 196 N.W.2d 745 (1972).

Evidence that the defendant walked around a private dwelling knocking on doors, then broke the glass in one, entered, and when confronted offered no excuse, was sufficient to sustain a conviction for burglary. Raymond v. State, 55 Wis. 2d 482, 198 N.W.2d 351 (1972).

A burglary is completed after a door is pried open and entry made. It was no defense that the defendant had changed his mind and started to leave the scene when arrested. Morones v. State, 61 Wis. 2d 544, 213 N.W.2d 31 (1973).

Hiding in the false ceiling of the men's room, perfected by false pretenses and fraud, rendered an otherwise lawful entrance into a restaurant unlawful. Levesque v. State, 63 Wis. 2d 412, 217 N.W.2d 317 (1974).

Failure to allege lack of consent in an information charging burglary was not a fatal jurisdictional defect. Schleiss v. State, 71 Wis. 2d 733, 239 N.W.2d 68 (1976).

In a burglary prosecution, ordinarily once proof of entry is made, it is the defendant's burden to show consent. When a private residence is broken into at night, little evidence is required to support an inference of intent to steal. LaTender v. State, 77 Wis. 2d 383, 253 N.W.2d 221 (1977).

Entry into a hotel lobby open to the public, with intent to steal, is not burglary. Champlin v. State, 84 Wis. 2d 621, 267 N.W.2d 295 (1978).

Section 939.72 (3) does not bar convictions for possession of burglarious tools and burglary arising out of a single transaction. Dumas v. State, 90 Wis. 2d 518, 280 N.W.2d 310 (Ct. App. 1979).

Intent to steal is capable of being gleaned from the defendant's conduct and the circumstances surrounding it. State v. Bowden, 93 Wis. 2d 574, 288 N.W.2d 139 (1980).

Under the facts of the case, the defendant's employer did not give the defendant consent to enter the employer's premises after hours by providing the defendant with a key to the premises. State v. Schantek, 120 Wis. 2d 79, 353 N.W.2d 832 (Ct. App. 1984).

Felonies that form the basis of burglary charges include only offenses against persons and property. State v. O'Neill, 121 Wis. 2d 300, 359 N.W.2d 906 (1984).

To negate the intent to steal through the defense of “self-help" repossession of property stolen from the defendant, the money repossessed must consist of the exact coins and currency owed to him or her. State v. Pettit, 171 Wis. 2d 627, 492 N.W.2d 633 (Ct. App. 1992).

As used in sub. (2) (d), “battery" applies only to simple battery. Convictions for both intermediate battery under s. 940.19 (3) and burglary/battery under sub. (2) (d) did not violate double jeopardy. State v. Reynolds, 206 Wis. 2d 356, 557 N.W.2d 821 (Ct. App. 1996), 96-0265.

A firearm with a trigger lock is within the applicable definition of a dangerous weapon under s. 939.22 (10). State v. Norris, 214 Wis. 2d 25, 571 N.W.2d 857 (Ct. App. 1997), 96-2158.

Sub. (1) [now sub. (1m)] requires only an intent to commit a felony. There is not a unanimity requirement that the jury agree on the specific felony that was intended. State v. Hammer, 216 Wis. 2d 214, 576 N.W.2d 285 (Ct. App. 1997), 96-3084.

A nexus between the burglary and the weapon is not required for an armed burglary conviction. Being armed is a necessary separate element. That a nexus is not required does not violate due process and fundamental fairness. State v. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999), 98-2655.

The defendant's violation of the bail jumping statute by making an unauthorized entry into the initial crime victim's premises in violation of the defendant's bond with the purpose of intimidating the victim constituted a felony against persons or property that would support a burglary charge. State v. Semrau, 2000 WI App 54, 233 Wis. 2d 508, 608 N.W.2d 376, 98-3443.

A person commits a burglary by entering premises with the intent of committing a felony against persons or property while on the premises, regardless of whether the person's actions while within the premises constitute a new crime or the continuation of an ongoing offense. Felon in possession of a firearm in violation of s. 941.29 is a crime against persons or property that may be an underlying felony for a burglary charge. State v. Steele, 2001 WI App 34, 241 Wis. 2d 269, 625 N.W.2d 525, 00-0190.

Each paragraph of sub. (2) defines a complete stand-alone crime. Separate convictions under separate paragraphs arising from the same event do not constitute double jeopardy. State v. Beasley, 2004 WI App 42, 271 Wis. 2d 469, 678 N.W.2d 600, 02-2229.