Criminal Law & Procedure · Residential Burglary

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Official Scope

7. Residential Burglary

Nevada criminalizes several types of burglary. The Nevada FLE tests the most foundational of those crimes, residential burglary. NRS 205.060(1)(a).

Scope of tested knowledge

Unlike the common law, Nevada does not limit burglary to actions that occur at night. The statute punishes behavior that occurs “by day or night.” State v. White, 130 Nev. 533, 537, 330 P.3d 482, 485 (2014).
Nor does Nevada require proof of the common-law element of “breaking” to establish burglary. Proof of unlawfully entering or remaining on the property is sufficient. State v. White, 130 Nev. 533, 537, 330 P.3d 482, 485 (2014).
Test-takers should be able to read closely the statute’s definitions of “dwelling” and “unlawfully enters or unlawfully remains” and to apply those definitions to hypothetical fact patterns.
Nevada requires an intent to commit specified crimes (including misdemeanors) or the intent to commit any felony as an element of burglary. This element is somewhat broader than the common-law one, which focused exclusively on felonies.
Residential burglary can be based on either an unlawful entry or unlawfully remaining in property (after an initially lawful entry).
A burglary based on an unlawful entry requires specific intent to commit one of the specified crimes at the time of entry. Formulating that intent after entry is not sufficient to support conviction for burglary based on unlawful entry.
A defendant who “remains in” a structure after an initially lawful entry, on the other hand, can form the specific intent to commit a target crime at any point while “remaining in” the structure unlawfully.

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Plain Language

Bottom line

Nevada residential burglary is broader than the common-law crime: no breaking, no nighttime, an intent to commit a specified crime or any felony, and two ways to commit it whose intent timing differs. Read which theory the facts present, then test the intent at the right moment.

Two common-law elements are gone. There is no nighttime requirement; the statute reaches conduct by day or night. And there is no breaking requirement; unlawfully entering or unlawfully remaining is enough. The intent element is also broader: the defendant must intend to commit one of the specified crimes, which include grand or petit larceny, assault, battery, obtaining money or property by false pretenses, or any felony. The target crime can be a misdemeanor; it does not have to be a felony, as it did at common law.

Two ways, different intent timing

1Unlawful entry: the defendant must have the specific intent to commit a target crime at the time of entry. Walking in with no criminal purpose and only later deciding to steal does not support a burglary based on unlawful entry.
2Unlawfully remaining after an initially lawful entry: the defendant can form the specific intent at any point while unlawfully remaining. A person who enters a store lawfully, then slips into a back area not open to the public and decides to steal, can be guilty on the remaining theory even though the original entry was innocent.

The dwelling definition is broad, covering many structures and conveyances used for living or overnight accommodation, and a license to be in a part open to the public is not a license to enter a part that is not open to the public.

Watch out

Any answer that demands a break-in or a nighttime entry is testing the common law, not Nevada law.

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Make it Stick

Memory hook

"No breaking, no night, two timing rules."

Nevada drops the common-law breaking and nighttime elements, so any answer demanding either is testing the wrong law.

Then split on theory: entry theory needs the criminal intent at the time of entry (intent formed after entry is too late); remaining theory (after an initially lawful entry) lets the intent form at any point while unlawfully remaining.

Target crime can be a misdemeanor or any felony.

License to a public part is not license to a non-public part.

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Rule in Action

The facts

A shopper walked into a retail store during business hours with no plan to do anything wrong, so the entry into the public sales floor was lawful. While inside, the shopper noticed an unlocked door marked for employees only, slipped through it into a private stockroom not open to the public, and there formed the intent to steal merchandise, which she then pocketed.

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Which theory?Not unlawful entry, because the entry onto the public sales floor was lawful and innocent. This is the unlawfully-remaining theory: she entered a non-public part she had no license to enter.

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Timing of intent?Under the remaining theory, intent can form at any point while she is unlawfully remaining, and she formed the intent to steal in the stockroom. That suffices.

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Breaking or nighttime?Neither is required.

Takeaway

She can be convicted of residential burglary on the remaining theory. Flip it: if she had entered the store's public floor already intending to steal, that intent at the time of an unlawful entry would be needed for the entry theory, but a lawful entry to a public area defeats the entry theory; the case still works on the remaining theory once she goes into the non-public stockroom with or later forming the intent there.

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Common Distractors

Wrong-doctrine transplant

An option that denies burglary because the defendant did not break in, used an open or unlocked door, or entered during the daytime.

Nevada requires neither a breaking nor a nighttime entry; unlawfully entering or remaining by day or night is sufficient.

Timing / threshold

On an unlawful-entry theory, an option that treats intent formed after entry as sufficient, or that says later intent makes the entry unlawful.

A burglary based on unlawful entry requires the specific intent at the time of entry; intent formed after entry supports only the remaining theory.

Misstated standard

An option requiring the target crime to be a felony, or saying intent to commit a misdemeanor cannot support burglary.

Nevada's intent element includes specified crimes including misdemeanors, as well as any felony.

Overstatement

An absolute claim that entering a home without permission is automatically burglary, or that a guest or customer can never commit it.

The offense requires the specific intent to commit a target crime at the right moment for the theory charged; status alone is neither sufficient nor a categorical shield.

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How It's Tested

When you see

the stem puts someone inside a home or other dwelling-type structure and plays with two things, whether they broke in or came at night (red herrings under Nevada law), and when they formed the intent to commit a crime inside.

Run the analysis

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ignore any breaking-or-nighttime hook; neither is required.

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Then identify the theory.

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If the entry itself was unlawful, ask whether the criminal intent existed at the time of entry; intent formed only afterward will not support the entry theory.

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If the entry was initially lawful but the person then unlawfully remained (for example, by going into a non-public area), the intent can form at any point while unlawfully remaining.

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Match the theory to the facts, then test the intent at the correct moment.

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Practice

Question 1 of 5

Late one afternoon, a man walked up to a house, found the front door standing wide open, and stepped inside without forcing anything, already intending to take a laptop he had seen through the window. He had no permission to enter. Once inside he grabbed the laptop and left. He is charged with residential burglary, and he argues that he cannot be guilty because he did not break in and entered during the daytime.

Is the man likely to be convicted of residential burglary?

Question 2 of 5

A guest was invited into a friend's apartment for dinner and entered lawfully, with no thought of doing anything wrong. Partway through the evening, while alone in the living room, the guest noticed an expensive ring on a shelf and, for the first time, decided to take it, slipping it into a pocket before leaving. The prosecution charges residential burglary on the theory that the guest unlawfully entered the apartment with the intent to steal.

Is the unlawful-entry theory likely to succeed?

Question 3 of 5

A customer entered a small shop that was open to the public, intending only to browse, so the entry onto the public sales floor was lawful. While inside, the customer noticed a door marked private leading to a back office not open to customers, slipped through it where she had no license to be, and there decided to take cash from the desk, which she then pocketed. The prosecution charges residential burglary on the theory that she unlawfully remained in a part of the premises not open to the public.

Is the unlawfully-remaining theory likely to succeed?

Question 4 of 5

At midday, a person with no permission to enter pried open a window of an occupied house and climbed inside, intending to punch and injure a rival he believed was home. The rival turned out to be away, and the intruder left without finding anyone. He is charged with residential burglary, and he contends that because his plan was only to commit a simple battery, a misdemeanor, his intent cannot support a burglary.

Is the man likely to be convicted of residential burglary?

Question 5 of 5

A delivery worker was authorized to enter the lobby of an apartment building to leave packages, and she entered the lobby lawfully for that purpose. Once in the lobby, she saw that a resident's individual apartment door was ajar and, deciding she wanted to look for valuables, pushed it open and stepped into the apartment, a separately occupied unit in which the resident lived, where she had no permission to be. She is charged with residential burglary of the apartment.

Is the delivery worker likely to be convicted of residential burglary of the apartment?