9.2-1 Burglary in the First Degree -- § 53a-101 (a) (1) and (2)
Revised to April 23, 2010
The defendant is charged [in count __] with burglary in the first degree. The statute defining this offense reads in pertinent part as follows:
a person is guilty of burglary in the first degree when (he/she) unlawfully (enters / remains in)1 a building with intent to commit a crime therein and <insert appropriate subsection:>
§ 53a-101 (a) (1): (he/she) is armed with explosives or a deadly weapon or dangerous instrument.
§ 53a-101 (a) (2): in the course of committing the offense, (he/she) intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Entered/Remained in
The first element is that the defendant knowingly and unlawfully (entered / remained in) a building. A person acts "knowingly" with respect to conduct or circumstances when (he/she) is aware that (his/her) conduct is of such nature or that such circumstances exist. <See Knowledge, Instruction 2.3-3>.
Ordinarily, "building" implies a structure that may be entered and used by people as a residence or for business or for other purposes involving occupancy by people, whether or not it is actually entered and used as such. <Insert one or both of the following parts of the definition as appropriate:>
The statutory definition expands this definition to include, in addition to what we ordinarily know as a building, any watercraft, aircraft, trailer, sleeping car, railroad car, other structure or vehicle or any building with a valid certificate of occupancy.
The statutory definition also provides that where a building consists of separate units, such as, but not limited to separate apartments, offices or rented rooms, any unit not occupied by the defendant is, in addition to being a part of such building, a separate building. In other words, any one of these separate units, separately secured or occupied, when intruded upon, may be considered a "building," plus the whole building is considered a "building" for purposes of any unlawful intrusion into any part of it.
You must also determine whether the defendant unlawfully (entered / remained in) the building. A person unlawfully (enters / remains in) a building when the building, at the time, is not open to the public and the defendant is not licensed or privileged to do so. To be "licensed or privileged," the defendant must either have consent from the person in possession of the building or have some other right to be in the building.
[To "enter" a building the intruder need not necessarily place (his/her) entire body inside the building. Inserting any part of (his/her) body, or an implement or weapon held by (him/her), within the building is sufficient to constitute an entry as long as it is done without license or privilege. It does not matter how an intruder may actually have entered; if (he/she) did so without license or privilege, (he/she) has entered unlawfully.]
[A person may have entered a building lawfully, that is, (he/she) had the right or had been given permission, but that right is terminated or the permission withdrawn by someone who had a right to terminate or withdraw it. You may find that the defendant "unlawfully remained" in the building under these circumstances.]
Element 2 - Intent to commit
The second element is that the defendant unlawfully (entered / remained in) the building with the intent to commit a crime in the building. A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. <See Intent: Specific, Instruction 2.3-1.>
Even if the defendant never actually committed a crime in the building, if the evidence establishes beyond a reasonable doubt that (he/she) was there with such intention, this is sufficient to prove that the defendant unlawfully (entered / remained in) the building with the intent to commit a crime therein. Furthermore, the necessary intent to commit a crime must be an intent to commit either a felony or a misdemeanor in addition to the unlawful (entering / remaining in) the building.
In this case, the state claims that the defendant intended to commit <insert crime>. <Refer to the count in which this crime is charged or, if uncharged, give the elements of the crime.>
Element 3 - Weapon or injury
The third element is that <insert as appropriate:>
the defendant was armed with (explosives / a deadly weapon / a dangerous instrument) This means that the defendant at some point of (entering / remaining in)2 the building had actual physical possession of (explosives / a deadly weapon / a dangerous instrument). [<If explosives or a deadly weapon are alleged:> It is not necessary that the defendant actually use or even show it, or that any participant even know that the other has it in (his/her) possession. It does not matter how long a period of time any participant was so armed, or how quickly (he/she) came into possession of or disposed of such arms.] <Insert appropriate definitions:>
"Deadly weapon" is defined by statute as any weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles.
"Dangerous instrument" means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury. "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ. It is important to note that the article need not be inherently dangerous; all that is required is that the article was capable of causing death or serious physical injury under the circumstances in which it was used. Any article or substance, without limitation and even though harmless under normal use, may be found by you to be a dangerous instrument if, under the circumstances of its use or threatened or attempted use, it is capable of producing serious physical injury or death. The state need not prove that in fact death or serious physical injury resulted, only that the instrument had that potential under the circumstances.
"Explosive" is any chemical compound, mixture, or device that functions by explosion.3
in the course of committing the offense,4 the defendant (intentionally / knowingly / recklessly)5 inflicted or attempted to inflict bodily injury on someone. "Bodily injury" means impairment of physical condition or pain.6 The defendant need not actually have inflicted bodily injury on anyone as long as (he/she) attempted to inflict an injury on someone in the course of committing the burglary. An act is deemed to be "in the course of committing the offense," if it occurs in an attempt to commit the offense or flight after the attempt or commission.
In summary, the state must prove beyond a reasonable doubt that the defendant 1) unlawfully (entered / remained in) a building, 2) (he/she) had the intent to commit a crime, and 3) <describe the allegations concerning weapons or injuries>.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
burglary in the first degree, then you shall find the defendant guilty. On the
other hand, if you unanimously find that the state has failed to prove beyond a
reasonable doubt any of the elements, you shall then find the defendant not
1 Do not instruct on both "unlawful entering" and "unlawful remaining" if the information and the evidence could support a conceptual distinction between the two. See "enters or remains unlawfully" in the glossary.
2 The person must be armed while entering the building or while in the building. It does not include "while in immediate flight from." State v. Belton, 190 Conn. 496, 509-510 (1983); State v. Owens, 39 Conn. App. 45, 53, cert. denied, 235 Conn. 927 (1995) (reversed for improperly charging so). In State v. Grant, 177 Conn. 140, 146 (1979), there was evidence that a tire iron was used to break the window to gain entry to the building, but not that it was used against the person. "Whether a person arms himself with a dangerous instrument after entering the dwelling or enters the dwelling already armed is irrelevant with respect to his culpability under the statute." State v. Rozmyslowicz, 52 Conn. App. 149, 153 (1999); State v. Brooks, 88 Conn. App. 204, 210-11, cert. denied, 273 Conn. 933 (2005).
3 Also see definition in General Statutes § 29-343.
4 Note that one cannot "recklessly" attempt to inflict injury.
5 "In the course of" includes flight from. General Statutes § 53a-101 (b). See also State v. Maxwell, 29 Conn. App. 704, 712 (1992), cert. denied, 225 Conn. 904, cert. denied, 509 U.S. 930, 113 S.Ct. 3057, 125 L.Ed.2d 740 (1993) (rejecting defendant's claim that the injury occurred during a later altercation after he had fled the scene).
6 See State v. Coleman, 48 Conn. App. 260, 270-71 (1998) ("bodily injury" need not exclude "pain"); State v. Phillips, 17 Conn. App. 391, 393-94 (1989) (defining bodily injury with reference to pain did not mislead jury into thinking it could convict based on the victim's mental pain).
The elements of § 53a-101 (a) (1) are outlined in State v. Weaver, 85 Conn. App. 329, 342, cert. denied, 271 Conn. 942 (2004).
Burglary in the first degree
pursuant to § 53a-101 (a) (1) and § 53a-101 (a) (2) are separate offenses,
requiring proof of different elements. State v. Peay, 96 Conn. App. 421,
428-29, cert. denied, 280 Conn. 909 (2006).