Contractor who is supposed to do work for
homeowner, instead cleans homeowner out, stealing
various items from the home.

Defense atty is saying that since he had
effective consent to be in the house, it should
be a straight theft. I seem to remember
a case out there that is contrary, but can't
find it.

What do y'all think?

If the contractor had the homeowner's consent to be in the house at the time that he committed the theft, then you only have a theft in my opinion. Burglary would require a lack of effective consent to enter the house.

Was this an after work-hours entry and theft or did it occur as he was leaving the house after entering it to work? Depending on the timing, an argument could be made that the entry occurred with intent to commit theft and not made with intent to perform the contracted work, making it a burglary case.

I think you have a burglary -- too many times the focus is on "consent" and the "effective" part is ignored. That is your issue -- the contractor did NOT have EFFECTIVE consent to enter the house to commit theft, his ONLY consent to enter the house was to perform the work. If he had assaulted the homeowner, you would probably not be asking about the consent issue - so this is not different. If I ask to borrow your mower, then never return it, did I take it without your consent? Of course. Your consent was limited to borrowing the mower for a limited time. The contractor's consent to enter the house was for a limited purpose. INDICT.

Thanks for the input. That helps.

For clarification:
The burglary happened in the day, while the
homeowners were at work. They expected the
contractor to do the work in the day, while
they were gone. Contractor had been to the
house once before, when the agreement was made.
The time of the burglary was supposed to be
when he started actually doing work.
As far as the homeowners can tell, no work was
done inside the house. The work was supposed
to be performed only in the family room area,
while most of the items were stolen from the
master bedroom (Jewelry) and the den (coin
collection).