What is Second Degree Burglary?

Under South Carolina law, second-degree burglary is a felony offense divided into two distinct statutory categories under S.C. Code Ann. § 16-11-312: subsection (A), which involves the non-aggravated entry of a dwelling, and subsection (B), which involves the aggravated entry of a building S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455.

Elements of Second-Degree Burglary

To establish guilt for second-degree burglary, the State must prove specific elements depending on whether the charge is brought under subsection (A) or subsection (B) of S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455:

• Subsection (A) (Burglary of a Dwelling):
  1. The defendant enters a "dwelling" S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455;
  2. The entry is "without consent" S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455;
  3. The entry is accompanied by the "intent to commit a crime therein" S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455; and
  4. The entry occurs "absent any aggravating circumstance" State v. Goldenbaum, 294 S.C. 455.
• Subsection (B) (Burglary of a Building):
  1. The defendant enters a "building" S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455;
  2. The entry is "without consent" S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455;
  3. The entry is accompanied by the "intent to commit a crime therein" S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455; and
  4. The presence of at least one of the following "aggravating circumstances" S.C. Code Ann. § 16-11-312, State v. Goldenbaum, 294 S.C. 455:
     • The defendant or another participant in the crime is armed with a deadly weapon or explosive while entering, inside, or in immediate flight from the building S.C. Code Ann. § 16-11-312;
     • The defendant or another participant causes physical injury to any person who is not a participant in the crime S.C. Code Ann. § 16-11-312;
     • The defendant or another participant uses or threatens the use of a dangerous instrument S.C. Code Ann. § 16-11-312;
     • The defendant or another participant displays what is or appears to be a knife, pistol, revolver, rifle, shotgun, machine gun, or other firearm S.C. Code Ann. § 16-11-312;
     • The burglary is committed by a person with a prior record of two or more convictions for burglary, housebreaking, or a combination of both S.C. Code Ann. § 16-11-312; or
     • The entering or remaining in the building occurs in the nighttime S.C. Code Ann. § 16-11-312.

Defenses to Second-Degree Burglary

A defendant may assert defenses based on the failure of the State to prove the essential statutory elements, specifically concerning consent, possessory rights, and statutory distinctions:

• Lawful Possession / Consent to Enter: Because South Carolina's burglary statutes couch the offense in terms of possession rather than legal ownership, a defendant cannot be convicted of burglary if they are in lawful possession of the property State v. Singley, 392 S.C. 270. The proper legal test is whether, under the totality of the circumstances, the defendant had custody and control of, and the right and expectation to be safe and secure in, the burglarized structure State v. Singley, 392 S.C. 270. If the defendant had such custody and control, they are a person in lawful possession and cannot be convicted State v. Singley, 392 S.C. 270.
• Absence of Aggravating Factors in Building Entries: A defendant cannot be convicted of second-degree burglary under subsection (B) for entering a building if there is no evidence of any statutory aggravating circumstances . In the absence of such aggravating factors, a defendant may only be charged with a lesser offense, such as third-degree burglary .
• Nighttime Entry of a Dwelling: If a dwelling is entered without consent and with the intent to commit a crime during the nighttime, the proper charge is first-degree burglary rather than second-degree burglary State v. White, 349 S.C. 33.

Penalties and Collateral Consequences

The penalties and post-conviction consequences for second-degree burglary depend on the specific subsection under which the defendant is convicted:

• Burglary in the Second Degree under Subsection (A):
  • Imprisonment: Punishable by imprisonment for not more than ten years S.C. Code Ann. § 16-11-312.
  • Classification: Classified as a non-violent offense under South Carolina law because it is not explicitly enumerated in S.C. Code Ann. § 16-1-60, Hair v. State, 305 S.C. 77.
  • Parole Eligibility: Under general parole provisions, a prisoner convicted of this non-violent offense is eligible for parole after serving at least one-fourth of the term of the sentence Hair v. State, 305 S.C. 77, S.C. Code Ann. § 24-21-610.
• Burglary in the Second Degree under Subsection (B):
  • Imprisonment: Punishable by imprisonment for not more than fifteen years S.C. Code Ann. § 16-11-312.
  • Classification: Expressly designated as a "violent crime" S.C. Code Ann. § 16-1-60, Smith v. State, 329 S.C. 280 and a "serious offense" .
  • Parole Restriction: The defendant must serve a mandatory minimum of not less than one-third of the term of the sentence before becoming eligible for parole S.C. Code Ann. § 16-11-312, S.C. Code Ann. § 24-21-610.
  • Collateral Restrictions: Conviction of this violent offense carries severe statutory consequences, including preclusion from the pretrial intervention program, the supervised furlough program, the Shock Incarceration Program, work release, and educational credits Smith v. State, 329 S.C. 280. Additionally, the offender is disqualified from professional licensing as an embalmer, funeral director, registered professional engineer, associate professional engineer, or professional land surveyor Smith v. State, 329 S.C. 280.

Secondary authorities suggest that burglary in the second degree under subsection (A) is classified as a Class E felony, whereas burglary in the second degree under subsection (B) is classified as a Class D felony .

Second-degree burglary in South Carolina is defined either by the non-aggravated entry of a dwelling (subsection A) or the entry of a building accompanied by specific aggravating circumstances (subsection B). Key defenses focus on whether the defendant had a lawful possessory right to the property or whether the state failed to prove the necessary aggravating factors for a building entry. Penalties range from a maximum of ten years' imprisonment for a subsection (A) offense to fifteen years' imprisonment for a subsection (B) offense, with the latter carrying the additional collateral and parole restrictions reserved for legally classified violent crimes.

Criminal defense in South Carolina is technical and detail-driven. Small facts often make the biggest difference.

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