Robbery, Theft, Burglary, and Assault—Understanding the Elements and Degrees

Our firm is frequently hired to defend crimes against individuals and property. The most common crimes in this category are robbery, burglary, and assault. These crimes are divided into degrees based on the gravity of the offense. In many situations, we are asked to minimize the severity of the consequences of a conviction when the facts clearly indicate a crime did occur. Obviously, all clients would prefer a not-guilty verdict, but in many situations, a proper defense must focus on downgrading charges to less-serious felonies or misdemeanors. As stated earlier, a misdemeanor conviction is far less serious than a felony, in which the presumption is that the convicted individual will serve time in state prison.

Robbery and Theft

Robbery is a theft committed by force. The degree of force is irrelevant when it comes to being accused of robbery, but it will determine the severity of the charge. First degree felony robbery is committed if the perpetrator inflicts or intentionally puts the victim in fear of serious bodily injury during the course of an unlawful “taking” (theft).
Second degree felony robbery is similar to first degree, but the “serious” term is removed from the definition. Third degree felony robbery is a theft committed with the slightest amount of force. Unlike a theft charge (taking without force), the value of the item taken is irrelevant. It is the force element that makes a theft a robbery.
Theft and robbery are separate offenses, but they are normally charged together and do merge for the purpose of sentencing following a conviction. Theft, similar to robbery, varies in degrees. A theft of an item or service over $2,000 is a felony of the third degree. All other thefts are misdemeanors (less than $50—misdemeanor of the third degree, $50 to $200—misdemeanor of the second degree, over $200 to $2,000—misdemeanor of the first degree).


A person commits a burglary if he or she unlawfully enters a building or an occupied structure with the intent to commit a crime while inside the structure. If the structure is “adapted for overnight accommodations,” and someone is actually present inside of it, the individual commits a felony of the first degree. In all other cases, burglary is considered a felony of the second degree. The law treats an unlawful entry into structures with a person inside more seriously because the theory is that the perpetrator preyed on a victim in a vulnerable state (i.e., sleeping) and/or entered a space in which a reasonable person should feel safe from harm. These structures are obviously not limited to homes and would also include such places as hotel rooms, campers, and virtually any other place in which a person could spend the night; they would not, however, include places of business (a felony of the second degree)
A typical defense to burglary is that the building or structure was abandoned at the time the individual entered it. In addition, the prosecution must demonstrate that the individual actually intended to commit a crime after entering the premises. Intent to commit a crime is often established through circumstantial evidence when there were no witnesses who observed the person committing the act.
In addition to burglary, the crime of criminal trespass is also a felony of the second or third degree based on the level of force used to enter the premises (break-ins are felonies of the second degree while all other types of entry are felonies of the third degree).
Criminal trespassing can also be a misdemeanor when a court finds that an individual is a “defiant trespasser” and simply entered the premises without permission or that he or she disregarded “no trespassing” or “do not enter” signs.


Unlike burglary and robbery, assault is sometimes classified as a misdemeanor (simple assault) and as a felony (aggravated assault). Similar to robbery, an aggravated assault is classified as a felony of the first degree if the perpetrator inflicted or threatened serious bodily injury. A second degree felony assault requires only bodily injury. The difference between a felony of the second degree and a felony of the first degree is the severity of the physical contact or the threat of it. Any physical contact (even the slightest touch) with a police officer is considered aggravated assault.

A simple assault is defined as an unlawful touching. If the unlawful touching causes an injury, however, the prosecution will likely charge both aggravated and simple assault. Simple assault is further classified based on its severity. Simple assault is normally a misdemeanor of the second degree unless it’s committed during the course of a fight (third degree) or if it’s committed against a child under age twelve by an adult twenty-one years of age or older (first degree).
All of the above crimes of violence vary in terms of degree of severity. While the variations may appear slight, the differences in the sentences are dramatic. It is important to understand the elements of these offenses and what determines their gradation (the severity of the felony vs. the severity of the misdemeanor). The gradation will determine an accused person’s potential exposure (potential criminal penalty).