Domestic Criminal Trespassing

First, what distinguishes “domestic” trespass from a typical trespass? The answer is that a “domestic” trespass requires that the charged party must have been married or have lived as if married to the party that claimed a trespass occurred, and that the parties are “living apart” at the time of the trespass.

Statute 14-134.3 establishes that a person is guilty of the offense if they have been forbidden to enter or have been ordered to leave the property by the lawful occupant and thereafter enter or refuse to leave the same property, where those premises are occupied by the charged person’s present or former spouse, OR another person with whom the charged person has lived as if married at a time when the charged person and the present or former spouse (or person with whom the charged person has lived with as though married) are living apart.

Understanding when you can be charged with domestic criminal trespass involves delving deeper into what “living apart” means under North Carolina Gen. Stat. § 14-134.3. Here are some specific scenarios where charges may be applicable:

• Court Orders: If there is a court order of separation or a protective order requiring the defendant to maintain a certain distance, entering the property could lead to charges.

• Mutual Agreements: Evidence showing that both parties have agreed to live separately can also result in charges if one party enters the other’s premises without permission.

• Ownership vs. Occupation: Importantly, these charges can be brought even if you own the property. If you leave a marital home and return without the current occupant’s consent, you risk facing charges.

These scenarios illustrate that the charge hinges not on ownership but on who occupies the property and whether the entry or continued presence is consensual. Understanding these distinctions can help you navigate the complexities of domestic criminal trespass laws.

What Evidence is Required to Prove Domestic Criminal Trespass in North Carolina?

In North Carolina, being charged with domestic criminal trespass involves proving that someone illegally entered a property inhabited by a former spouse or partner, without consent. A key factor in these cases is demonstrating that the involved parties have been living separately.

To establish this, the prosecution may present several types of evidence:

• Court Order of Separation: A legal document indicating an official separation.

• Protective or Restriction Orders: Legal mandates requiring the defendant to maintain a specified distance from the accuser.

• Mutual Separation Agreement: Any formal or informal agreement between the parties to live apart.

• Additional Proof of Separate Living Conditions: Other credible evidence that shows the individuals have maintained separate residences.

Each piece of evidence helps build a case to substantiate that trespass occurred under conditions defined by North Carolina law.

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Violating this statute can either result in a class 1 misdemeanor or a class G felony. In order to qualify as a felony, the trespass must have occurred on the property of a designated safe house or haven for domestic violence victims, and the defendant must have been found armed with a deadly weapon. The vast majority of cases, however, are misdemeanant.

Penalties for Domestic Criminal Trespass in North Carolina

The consequences for domestic criminal trespass in North Carolina vary based on the details of the incident. Generally, this offense is treated as a Class 1 misdemeanor when the individual enters or stays on property they’ve been ordered to leave. This is common in situations where the defendant and the accuser once shared the property.

Classifications and Consequences

1. Class 1 Misdemeanor:

   • Applicable when an individual enters or remains on another person’s property after being told to leave.
   • This can lead to penalties such as fines, probation, or even jail time.

2. Class G Felony:

   • If the individual trespasses with a deadly weapon and the victim is someone they have a history of domestic violence with, the charge escalates.
   • A deadly weapon includes items like knives, guns, or any object that can inflict serious harm.
   • Conviction can result in more severe consequences, including a lengthy prison sentence.

3. Violation of Protective Orders:

   • Trespassing in violation of an existing protective order compounds the legal issues.
   • This results in facing separate charges for both trespass and violation of the protective order, potentially leading to escalating penalties.

If someone is accused of domestic criminal trespass, it’s crucial to understand the seriousness of the charge due to its potentially harsh penalties. Seeking legal advice is advisable to navigate these complex situations effectively.

Consequences of Entering a Property in Violation of a Protective Order

When someone enters a property in violation of a protective order, the legal repercussions vary based on the situation’s specifics. Here’s an overview of what could happen:

• Class 1 Misdemeanor: Generally, if you enter or remain on someone else’s property after being told to leave, you may be charged with a Class 1 misdemeanor. This applies to most cases where trespass is concerned, without additional aggravating factors.

• Class G Felony: If the situation involves a deadly weapon and the victim is a survivor of domestic violence, the stakes are much higher. This elevates the crime to a Class G felony, which carries more severe penalties. Deadly weapons include anything capable of inflicting lethal harm, such as firearms, knives, or heavy blunt objects.

• Violation of Protective Orders: Entering a property that you are legally barred from approaching—due to a protective order—compounds the issues. You face charges for both violating the protective order itself and the trespass. This dual charge can result in increased penalties, emphasizing the gravity of disobeying court mandates.

In all these scenarios, legal consequences can lead to jail time, fines, or both, highlighting the serious nature of such offenses. It’s crucial to respect protective orders and understand the implications of violating them.

Consider this set of facts: Husband and Wife separated 2 months ago, with Husband moving out of the jointly owned marital home during the separation period. Wife has asked that the Husband not return to the home.

Husband, feeling as though he has the right to enter his own property, returns to the house to pick up some of his belongings. Even though he has a title right to the property (in that his name is on the deed or mortgage), Husband could be charged with domestic criminal trespass, as all the elements of the statute have been satisfied by the facts as given.

In North Carolina, the law is clear: returning to the marital home without permission can have serious legal repercussions. Domestic criminal trespass charges can be brought against a spouse who remains or returns to the family home despite being ordered to stay away or leave. This means that even if you believe you have a rightful claim to the property, the legal system prioritizes the enforcement of protective orders or agreements made during a divorce process.

Key Points to Consider

• Legal Ownership vs. Legal Orders: Having your name on the deed or mortgage doesn’t exempt you from following court mandates. The law recognizes the importance of upholding legal orders over property titles in these situations.

• Potential Consequences: Ignoring a court order to stay away from the marital home can result in criminal charges, which complicates divorce proceedings and can lead to additional legal penalties.

• Understanding Your Rights: It’s crucial to seek legal advice to understand your rights and obligations during a divorce, especially regarding property access.

Navigating the complexities of property access during a divorce requires careful consideration of both legal rights and court orders. Always consult with a legal professional to ensure compliance and protect your interests.

There are obvious potential discrepancies as to the “relationship status” and “living apart” elements. Often, parties may not be able to define their relationship on a certain date; further, parties may disagree as to whether they are truly living apart.

Can I Still Be Prosecuted if the Person Who Called the Police Doesn’t Want to Press Charges?

You might assume that if the person who called the police doesn’t want to press charges, you’re in the clear. However, this isn’t always the case. Here’s why:

The Role of the State

1. State’s Decision: Once the police are involved and a report is filed, it’s typically up to the state or district attorney to decide whether to pursue charges. This decision is not solely dependent on the victim’s wishes.

2. Evidence-Based Prosecution: Prosecutors often make their decisions based on available evidence rather than the preferences of individuals involved. If they believe there’s sufficient evidence of a crime, they may proceed regardless.

Common Scenarios

• Domestic Disputes: These cases frequently see individuals calling the police in heated moments, later desiring to retract. However, many jurisdictions pursue these cases to prevent potential future harm.

• Public Interest: Prosecution might continue if it’s determined that proceeding serves a broader public interest, such as the deterrence of criminal behavior.

What You Can Do

• Legal Representation: Engaging a knowledgeable attorney can help navigate these complexities. They can argue on your behalf and potentially negotiate alternatives to prosecution.

• Cooperation with Authorities: Proactively cooperating can potentially mitigate the situation. However, always consult with your attorney before making any statements.

While the caller’s desire not to press charges might influence the case, it’s ultimately the legal system that holds the reins. Always seek professional legal counsel to ensure your rights are protected.

To empower themselves when facing criminal charges, individuals should first become well-versed in their constitutional rights. Understanding the fundamentals—such as the right to remain silent, the right to a fair trial, and the right to legal representation—can lay a solid foundation.

Steps to Empowerment:

1. Educate Yourself: Utilize reputable resources like the American Civil Liberties Union (ACLU) and U.S. Courts‘ websites to deepen your understanding of constitutional rights.

2. Consult Attorneys: Seek advice and representation from experienced criminal defense attorneys who can provide personalized guidance and build a strong defense strategy.

3. Prepare for Proceedings: Practice articulating your situation clearly and understanding the legal process to aid your defense team in protecting your interests effectively.

4. Stay Informed: Keep abreast of any changes in laws or procedures that might impact your case, ensuring you and your attorney are always on the same page.

By taking these proactive steps, individuals can better navigate the legal system and protect their rights throughout the criminal defense process.

If you have been charged with this offense, it is imperative that you seek legal counsel immediately. Depending on your misdemeanor level, you could be sentenced to 120 days in jail, or, if you qualify for a felony, 8 to 31 months in jail. Minick Law’s experienced attorneys are here to help.

What Legal Issues Might Individuals Face Related to Criminal Charges?

When individuals encounter criminal charges, the landscape of legal challenges they might face is diverse and complex. Understanding these issues can help navigate the judicial process more effectively.

Traffic Offenses and DUI/DWI

One of the most common legal issues is related to traffic violations, including offenses like speeding, reckless driving, or driving under the influence (DUI/DWI). These charges can lead to hefty fines, license suspension, or even imprisonment.

Drug Charges

Drug-related legal troubles can vary significantly, ranging from simple possession to more severe accusations such as intent to distribute or drug trafficking. Each level of charge comes with its own set of consequences and legal implications.

Weapons and Property Offenses

Individuals might also face charges for illegal possession of firearms or other weapons, denied gun permits, and related offenses. In addition, property crimes such as larceny, burglary, robbery, fraud, and embezzlement are also significant legal concerns.

Sexually Related Offenses

Legal challenges can arise from accusations of sexually related offenses. These may include indecent exposure, sexual assault, or violations that could affect one’s status on the sex offender registry.

Violent Crimes

Charges involving violence, such as domestic violence, assault, manslaughter, or murder, are serious and carry substantial legal consequences, often needing rigorous defense and extensive legal proceedings.

Additional Legal Challenges

Beyond these categories, individuals facing criminal charges might encounter other issues like restraining orders, violations of probation or restraining orders, and the complexities of expunging records. Immigration issues can also surface, particularly when criminal charges overlap with immigration law.

Appeals and Expungements

After an initial verdict, individuals have the option to appeal their case, seeking a different outcome. Moreover, some may pursue expungement to clear their criminal record, which can be a lengthy and difficult process.

Navigating the intricacies of the legal system with these charges requires understanding each potential issue and preparing an informed defense strategy.

What Happens to the Marital Home During Divorce or Legal Separation?

When spouses decide to divorce or legally separate, the fate of the marital home becomes a significant issue. Typically, one partner moves out, leaving the remaining spouse in the residence.

Possession During Proceedings

While divorce proceedings are ongoing, courts often issue orders that determine who stays in the home. These orders can restrict the departing spouse from returning, at least temporarily. This arrangement helps maintain stability and minimizes conflict.

Long-Term Decisions

Long-term decisions about the home’s future are typically part of the divorce settlement. These may include:

• Selling the Home: Both parties agree to sell the property and divide the proceeds, providing a clean break.
• Buying Out the Other Spouse: One spouse may buy out the other’s share, allowing them to retain ownership.
• Co-Ownership: Rare in contentious divorces, but some couples agree to temporarily maintain joint ownership until a future decision can be made, such as when children are older.

Each option has its financial implications and emotional considerations, often requiring negotiation or mediation.

Legal and Financial Considerations

It’s essential for both parties to consult with their attorneys to understand the legal and financial repercussions. Decisions should align with individual circumstances and future financial stability.

Understanding the potential outcomes can help spouses make informed choices about the marital home as they navigate divorce or legal separation.

Contact us today for a consultation.

 

Read other related articles from our blog:

How to respond when the other parent is trying to turn your child against you
DSS just took my child. How can a Family Law Attorney help?

Attorney Robert Gilligan is based in Minick Law’s Waynesville office and handles DWI, Criminal Defense, and Family Law cases.