28-507 Burglary; penalty. - Nebraska Statutes

28-507. Burglary; penalty.(1) A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value.(2) Burglary is a Class III felony. SourceLaws 1977, LB 38, § 106.Annotations1. Breaking2. Elements3. Evidence4. Intent5. Lesser-included offense1. BreakingIt was not plain error for the trial court to not specifically instruct the jury that removal of an obstacle to entry was required to constitute breaking when trial court gave examples of the application of physical force which required the removal of an obstacle. State v. Greer, 257 Neb. 208, 596 N.W.2d 296 (1999).The opening of a closed door is a "breaking" within the definition of burglary. State v. Tyrrell, 234 Neb. 901, 453 N.W.2d 104 (1990).Evidence of any act of physical force by which the obstruction to entering is removed, such as opening a closed screen door to enter an apartment, is sufficient to prove a breaking under subsection (1) of this section. State v. Zemunski, 230 Neb. 613, 433 N.W.2d 170 (1988).Evidence of any act of physical force by which the obstruction to entering is removed, such as opening a closed screen door to enter an apartment, is sufficient to prove a breaking under this statute. State v. Sutton, 220 Neb. 128, 368 N.W.2d 492 (1985).Breaking requires both the use of physical force, however slight, and the removal of an obstruction to entering. State v. Greer, 7 Neb. App. 770, 586 N.W.2d 654 (1998).2. ElementsOne commits burglary in violation of subsection (1) of this section when one, in the proscribed manner, breaks and enters any real property or improvements thereon with the proscribed intent; no actual theft or asportation of property is required. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).3. EvidenceCircumstantial evidence is sufficient to support a criminal conviction if such evidence and reasonable inferences drawn from the evidence establish the defendant's guilt beyond a reasonable doubt. State v. Zemunski, 230 Neb. 954, 434 N.W.2d 520 (1989).4. IntentIntent sufficient to support a conviction for burglary may be inferred from the facts and circumstances surrounding an illegal entry, and no actual theft or asportation of property is required. State v. Vaughn, 225 Neb. 38, 402 N.W.2d 300 (1987).5. Lesser-included offenseCriminal trespass in violation of section 28-520(1) is not a lesser-included offense of burglary as defined in subsection (1) of this section. State v. Gonzales, 218 Neb. 43, 352 N.W.2d 571 (1984).Criminal trespass is not a lesser-included offense of burglary. State v. Miller, 215 Neb. 145, 337 N.W.2d 424 (1983).