9.2-8 Home Invasion -- § 53a-100aa
Revised to April 23, 2010 (modified November 6, 2014)
The defendant is charged [in count __] with home invasion. The statute1 defining this offense reads in pertinent part as follows:
a person is guilty of home invasion when such person unlawfully (enters / remains in)2 a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein, and, in the course of committing the offense <insert appropriate subsection:>
- (a) (1): acting either alone or with one or more persons, such person or another participant in the crime commits or attempts to commit a felony against the person of another person other than a participant in the crime who is actually present in such dwelling.
- (a) (2): such person is armed with explosives or a deadly weapon or dangerous instrument.
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
The first element is that the defendant knowingly and unlawfully (entered / remained in) a dwelling. 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.>
"Dwelling" means a building that is usually occupied by a person lodging therein at night. Therefore, a structure that cannot possibly be occupied as a lodging cannot be a dwelling.
You must also determine whether the defendant unlawfully (entered / remained in) the dwelling. A person unlawfully (enters / remains in) a dwelling when (he/she) 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 dwelling or have some other right to be in the dwelling.
[To "enter" a dwelling the intruder need not necessarily place (his/her) entire body inside the dwelling. Inserting any part of (his/her) body, or an implement or weapon held by (him/her), within the dwelling is sufficient to constitute such entry as long as it is 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 dwelling lawfully, that is, (he/she) had the right or had been given permission, but that right is terminated or the permission withdrawn by someone who had a right to terminate or withdraw it.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 dwelling under these circumstances.]
Element 2 - Intent to commit a
The second element is that the defendant intended to commit a crime in that dwelling. 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 dwelling, 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 dwelling 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 or remaining in the dwelling.
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 - Persons present in
The third element is that when the defendant (entered / remained in) the dwelling, a person other than a participant in the crime was actually present in the dwelling.
Element 4 - Additional factor
The fourth element is that in the course of committing the home invasion, <insert as appropriate:>
- the defendant, acting either alone or with one or more persons, or another participant in the crime committed or attempted to commit a felony against the person of another person other than a participant in the crime who is actually present in such dwelling. <Instruct on the felony or refer back to the instruction on another count charging the felony.>3 As a matter of law, <insert crime> is a felony.
- the defendant was armed with explosives or a deadly weapon or dangerous instrument. This means that the defendant at some point of (entering / remaining in)4 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.5
In summary, the state must prove beyond a reasonable doubt that the defendant 1) unlawfully entered or remained in a dwelling, 2 (he/she) intended to commit a crime in the dwelling, 3) another person, other than a participant in the home invasion, was actually present in the dwelling, and 4) <insert additional factor>.
If you unanimously find that the
state has proved beyond a reasonable doubt each of the elements of the crime of
home invasion, 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 guilty.
1 Public Acts, Spec. Sess., January, 2008, 08-1, § 1, which created this offense, became effective March 1, 2008.
2 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.
3 If the underlying felony is an attempt crime, the court must instruct the jury on the definition of criminal attempt. Small v. Commissioner of Correction, 286 Conn. 707, 727 (2008). See Attempt -- § 53a-49 (a) (1), Instruction 3.2-1 and Attempt -- § 53a-49 (a) (2), Instruction 3.2-2.
4 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).
5 Also see definition in General Statutes § 29-343.
In State v. Gemmell, 151 Conn. App. 590, 608-611, cert. denied, 314 Conn. 915 (2014), the defendant submitted a request to charge that combined elements 1 and 3 as laid out above, which read "The first element is that the defendant knowingly and unlawfully entered a dwelling while the dwelling was occupied." This could have led the jury to conclude that the defendant had to have known that the dwelling was occupied. The trial court, instead, gave this model instruction. The Appellate Court held that this was the accurate statement of the law.