Telling the Difference between Home Invasion and Burglary

When a person is charged with breaking and entering another person’s home, prosecutors frequently charge both Home Invasion and Burglary.  Burglary is entering a protected structure with the intent to commit a crime inside.  In contrast, Home Invasion is forcibly entering an occupied residence.  To be considered “occupied” someone must live in the residence, but that person does not have to be home at the time of the offense.

NRS 205.060 defines Burglary and states: “A person who, by day or night, enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, vehicle, vehicle trailer, semitrailer or house trailer, airplane, glider, boat or railroad car, with the intent to commit grand or petit larceny, assault or battery on any person or any felony, or to obtain money or property by false pretenses, is guilty of burglary.”

NRS 205.067 defines Home Invasion as: “A person who, by day or night, forcibly enters an inhabited dwelling without permission of the owner, resident or lawful occupant, whether or not a person is present at the time of the entry, is guilty of invasion of the home.”  Home Invasion requires that the forcible entry result in some form of damage to the structure.

Constitutional prohibitions against Double Jeopardy do not prevent the government from charging defendants with both Burglary and Home Invasion.  Under U.S. Supreme Court case law, convictions for two similar offenses do not violate Double Jeopardy when each offense requires proof of a fact that the other does not.  Here, Burglary requires proof that the offender had the intent to commit a crime inside the residence, which Home Invasion does not.  And, Home Invasion requires proof of a forcible entry, which Burglary does not.  Therefore, convictions for both offenses do not violate Double Jeopardy.

Nevertheless, Nevada Courts have held that convictions for both Burglary and Home Invasion are “redundant.”  In many cases, when a defendant is convicted of both offenses, Nevada Courts have reversed one of the two convictions.

Burglary and Home Invasion are extremely serious offenses and carry very heavy penalties.  A conviction for either of these offenses can result in a term up to ten (10) years in prison, up to a $10,000.00 fine and a future as a convicted felon.