9.2-2A Burglary in the Second Degree -- § 53a-102 (a) (1)
Note: This instruction is for crimes committed before March 1, 2008. Public Acts, Jan. Spec. Sess., 2008, No. 08-1, §§ 2 and 3, moved § 53a-102 (a) (1) to § 53a-101 (a) (3), making a burglary to a dwelling at night first degree rather than second degree burglary.
The defendant is charged [in count __] with burglary in the second degree. The statute defining this offense reads in pertinent part as follows:
a person is guilty of burglary in the second degree when such person unlawfully (enters / remains in)1 a dwelling at night with intent to commit a crime therein.
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 dwelling
The first element is that the defendant knowingly and unlawfully (entered / remained in) a dwelling.
"Dwelling" means a building that is usually occupied by a person lodging therein at night, whether or not a person is actually present. Therefore, a structure that cannot possibly be occupied as a lodging cannot be a dwelling. It need not, however, be actually occupied by any person at the time of crime; it does not lose its character as a dwelling merely because it is temporarily unoccupied, if such occupancy at night is its usual state.
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 an 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lawfully, that is, (he/she) had the right or had been given permission, but that right is terminated or the permission withdrawn by someone who had a right to terminate or withdraw it.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 - At night
The second element is that the defendant (entered / remained in) the dwelling at night. "Night" means the period between thirty minutes after sunset and thirty minutes before sunrise.2
Element 3 - Intent to commit a crime
The third 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.>
In summary, the state must prove beyond a reasonable doubt that the defendant 1) unlawfully (entered / remained in) a dwelling, 2) it was at night, and 3) (he/she) had the intent to commit a crime.
unanimously find that the state has proved beyond a reasonable doubt each of the
elements of the crime of burglary in the second 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 guilty.
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.
"The time of sunrise and sunset on any given day is a matter that falls within
the realm of facts which are capable of immediate and accurate demonstration by
resort to easily accessible sources of indisputable accuracy and therefore may
be judicially noticed." State v. Zayas, 195 Conn. 611, 614 (1985).