I have a case on my desk where the victim is an 80-something old lady. She wakes up at 6:30 in the morning. Goes to the kitchen to make coffee. On the way, she notices the bathroom door is shut, and hears water running. Assuming her husband is in there, she continues to the kitchen. She notices broken glass on the floor. Suspicious, she goes back to the bathroom, enters, and pulls back the shower curtain to find an unknown 25 year old male, nude, and showering. The man looks at my victim, then goes back to washing up. The victim then leaves the bathroom, locks the man in, and calls the police. Nothing indicates anything was stolen, and the man never laid a finger on the victim. It was filed in our office as a burglary of a habitation, in that the suspect appropriated the victim's property (water). The man has been arrested numerous times for a variety of offenses, but no felony convictions. While I am not sure that this theft of water felony will fly in front of a jury, I don't want to have to tell nice elderly lady that I have referred to county attorney for filing as criminal mischief/trespass. Any suggestions???
Oh, and suspect was quite intoxicated when found by police.
Could you take a run at a felony by alleging he intended to commit a crime after his shower, but was interrupted by the arrival of the police? I suppose the intended crime would be theft of something from the house, since he passed up an opportunity to assault the resident.
If I was a juror I would be susceptible to this argument because it doesn't make sense to break into a stranger's house just to freshen up. But then I'm a little biased.
He intended to steal, and in fact did steal, her soap. And, any juror will know that elderly people on a fixed budget, with medications, food, etc... even soap is an expense that must be budgeted.
Did anyone interview the guy? He might have a perfectly reasonable explanation. Did he think he was home?
We had a guy who was so drunk he knocked on the wrong door. When he couldn't get it (what he thought was his own house) he went through a window and was promptly shot.
The man looks at my victim, then goes back to washing up. The victim then leaves the bathroom, locks the man in, and calls the police. Nothing indicates anything was stolen, and the man never laid a finger on the victim. It was filed in our office as a burglary of a habitation, in that the suspect appropriated the victim's property (water). The man has been arrested numerous times for a variety of offenses, but no felony convictions. While I am not sure that this theft of water felony will fly in front of a jury, I don't want to have to tell nice elderly lady that I have referred to county attorney for filing as criminal mischief/trespass. Any suggestions??? 
