ENTERS OR REMAINS UNLAWFULLY
A person "enters or
remains unlawfully" in or upon premises when the premises, at the time
of such entry or remaining, are not open to the public and when the
actor is not otherwise licensed or privileged to do so.
General Statutes § 53a-100 (b) (applies to Part VIII: Burglary,
Criminal Trespass, Arson, Criminal Mischief, §§ 53a-101 -- 53a-117m).
Depending on the facts, unlawful entry and unlawful remaining may be
conceptually distinct. "To enter unlawfully means to accomplish an
entry by unlawful means, while to remain unlawfully means that the
initial entering of the building . . . was lawful but the presence
therein became unlawful because the right, privilege or license to
remain was extinguished." State v. Weaver, 85 Conn. App. 329,
342, cert. denied, 271 Conn. 942 (2004); see also State v. Clark,
48 Conn. App. 812, 822, cert. denied, 245 Conn. 921 (1998); State v.
Edwards, 10 Conn. App. 503, 513, cert. denied, 204 Conn. 808
(1987). In other cases, a person's acts of entering and remaining may
be conceptually indistinct and inseparable. "[T]he defendant's conduct
constituted one continuous course of unlawful conduct, namely, that he
entered the apartment unlawfully and remained there without any change
in his legal status. Under these circumstances, the unlawfulness of
his entry determined the unlawfulness of his remaining. The two
inexorably intertwined acts were conceptually indistinct." State v.
Delgado, 19 Conn. App. 245, 249 (1989); see also State v. Austin,
59 Conn. App. 305, 310, cert. denied, 255 Conn. 912 (2000); State v.
Moales, 41 Conn. App. 817, 824-26, cert. denied, 239 Conn. 908
(1996). The court's instruction should be tailored to the allegations.
See State v. Belton, 190 Conn. 496, 502 (1983) (by giving an
expansive instruction when the information only alleged that the
defendant "unlawfully entered" the building, the court "effectively
enlarged the offense as stated in the information").
"[A]n entry occurs
with any penetration, however slight, of the space within the . . .
building by the defendant, or by any part of his body." (Citations
omitted; internal quotation marks omitted.) State v. Weaver, 85
Conn. App. 329, 342, cert. denied, 271 Conn. 942 (2004). Force is not
required. "Forcible entry, with or without damage, is not an element of
burglary." State v. Garrett, 42 Conn. App. 507, 513, cert.
denied, 239 Conn. 928-29 (1996). It may, however, be relevant to the
defendant's intent to commit a crime. State v. Ward, 76 Conn.
App. 779, 799, cert. denied, 264 Conn. 918 (2004).
"The phrase 'licensed
or privileged,' as used in General Statutes § 53a-100 (b) is meant as a
unitary phrase, rather than as a reference to two separate concepts."
State v. Grant, 6 Conn. App. 24, 30 (1986). "In general, a
license or privilege to enter premises may derive from a transaction
between the possessor and the actor, or may arise irrespective of any
such transaction. Examples of those that arise from such a transaction
involve situations in which there is a present consent, or there was a
past consent, creating a license to enter. Examples of those that arise
irrespective of previous transactions between the parties involves
situations in which the possessor acted tortiously toward the actor, or
when public policy creates the license or privilege." Id., 30-31. See
State v. Hersey, 78 Conn. App. 141, cert. denied, 266 Conn. 903
(2003) (entering a home in violation of a protective order is entering
"without license or privilege"); State v. Stagnitta, 74 Conn.
App. 607, 615-17, cert. denied, 263 Conn. 902 (2003) (though an employee
may have had the right to enter the office of the restaurant, that right
did not extend to entering the office "displaying an eight to ten inch
knife and demanding money").