Burglary by Stalking?: How The Law Defines Crimes

David Burke, Photo from the Portland Press Herald

Things got a bit rough for Berwick Town Counselor David Burke. He was charged with Burglary and Domestic Violence Stalking and Probably Violating a Protection from Abuse Order. It gets one thinking about what those Crimes really are. Can you burglarize someone by stalking them?

Burglary Charges do not Require Any Theft

When you think of burglary, you normally think of someone breaking into a structure and stealing stuff from inside. That is a common fact pattern that leads to burglary charges. Still, Mr. Burke's case demonstrates that burglary can be charged in a wide variety of cases as long as the state can prove that a person:

• Enters or surreptitiously remains in a structure
• Knowing they are not allowed to enter
• And that they have the intent to commit a crime inside at the time of entry

If the structure is a residence, Burglary is a class B felony and has a 10 year maximum sentence. Otherwise, it is a C felony with a 5 year maximum sentence.

So almost any criminal activity after entering a structure can lead to burglary charges in Maine. One can be charged with burglary even if they do not accomplish the criminal act inside, so long as they entered with the intent to commit the crime. Often the crime is theft but in many cases, the crime will be something else, assault, criminal mischief, or, as in this case, stalking and violation of a protective order.

Stalking Might Not Mean What You Think it Means

Maine law says that someone is "stalking" when he or she "intentionally or knowingly engages in a course of conduct directed at or concerning a specific person that would cause a reasonable person:"

1. To suffer serious inconvenience or emotional distress;
2. To fear bodily injury or to fear bodily injury to a close relation;
3. To fear death or to fear the death of a close relation;
4. To fear damage or destruction to or tampering with property; or
5. To fear injury to or the death of an animal owned by or in the possession and control of that specific person.

But what, you ask, do they mean by "course of conduct"? Obviously threatening or harassing or surveilling someone is pretty stalkery, but the statute also defines "Course of Conduct" to include:

• Two or more acts, including but not limited to acts in which the actor, by any action, method, device or means, directly or indirectly follows, monitors, tracks, observes...communicates to or about a person or interferes with a person’s property.
• Course of conduct also includes, but is not limited to, threats implied by conduct.

I hope that clarifies things! The drafting is vague enough that one could be charged with stalking where their indirect communications cause a person to suffer emotional distress. This kind of statute is open to wide interpretation and that gives the prosecution a lot of power to charge a crime for conduct that one might not normally consider criminal. It also creates some interesting opportunities for defense: how much conduct is going to constitute a course? How overt must one implications be? How much emotional distress is enough to constitute a crime?

These are the kind of questions that a lawyer can help you answer. Remember that the prosecution needs to prove the case beyond all reasonable doubt. This kind of statute gives the District Attorney a lot of flexibility but it also gives a good defense attorney a lot of room to create reasonable doubt.