Breaking and Entering Charge for Retrieving Your Own Property

Attorney Answer

A landlord can accuse you of anything; whether the State can convict you is a different question, and on these facts the charge turns on one word — intent.

A storage shed behind a rental is not a dwelling, so the section that fits is W. Va. Code § 61-3-12, "Entry of building other than dwelling." Entry of a storehouse, shed, or similar structure is a felony under that section only where the entry is made "with intent to commit a felony or any larceny." Entry alone does not complete the offense. Neither does a dispute about whether you were allowed to be there. (The burglary section, W. Va. Code § 61-3-11, reaches only a dwelling house or an outbuilding adjoining the dwelling, and carries a different intent element — "intent to commit a violation of the criminal laws of this state." It is unlikely to fit a detached shed.)

That matters enormously to you. If the property in the shed was yours, if the lock was yours, and if you used your own key, then you were not taking the property of another — and taking your own property is not larceny. A genuine claim of right defeats the intent element the State has to prove. That is your defense, and it is a real one.

What it is not is a reason to relax. The charge is a felony as filed, and how you handle the next two weeks matters more than how strong your defense is on paper.

What you can do

1. Do not explain your side to the police. The prior advice you were given — go tell the officers what happened — is the single most dangerous thing you could do. Everything you say becomes the State's evidence, and you cannot un-say it. 2. Do not contact the landlord or the neighbor who called, in person, by phone, or by text. Contact after charges can turn into an intimidation allegation. 3. Ask for a court-appointed lawyer at your first appearance. For a criminal charge in West Virginia, this is the route to a free lawyer — you fill out a financial affidavit and the magistrate or judge appoints counsel. Legal Aid of West Virginia handles civil matters and will not defend a criminal charge, so do not lose time there. 4. Gather proof of permission and proof of ownership and give it to your lawyer, not to the police: any text or message where the landlord agreed you could store things there, the receipt or packaging for the lock, photographs, witnesses who saw you buy or install it, and anything showing the property inside was yours. 5. Do not write out your own account of what happened. Notes you create yourself are not protected by attorney-client privilege, can be seized or subpoenaed, and can be used to impeach you if your testimony later differs. Instead preserve the records that already exist — texts, call logs, emails, receipts, photos and location history — along with the names and contact details of any witnesses, and give your account to your attorney verbally. 6. Go to every court date. A missed appearance creates a warrant and a second charge, and it undoes a good defense.