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Criminal Jury Instructions

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9.2 Introduction to Burglary

Burglary is not strictly a crime against property.  See State v. MacFarlane, 188 Conn. 542, 553 (1982) (burglary entails a risk to persons who may be in a building).  "It is clear from . . . the comments by the commission to revise the criminal statutes that the basic rationale underlying the enactment of all of our present burglary statutes was protection against the type of invasion of premises likely to terrorize occupants."  State v. Belton, 190 Conn. 496, 506 (1983).   "The three degrees of the crime differ only in terms of aggravating factors for which the basic rationale requires different treatment."  (Internal quotation marks omitted.)  State v. Delgado, 19 Conn. App. 245, 254 (1989).

Intent to commit a crime
The jury does not have to be unanimous as to which specific crime the defendant intended to commit inside the building as long as the defendant had the intent to commit some crime.  State v. Luster, 48 Conn. App. 872, 878-79, cert. denied, 246 Conn. 901 (1998).  The language "intent to commit a crime therein" does not require that the crime be one against people or property within the building.  State v. Wallace, 56 Conn. App. 730, 734-37, cert. denied, 253 Conn. 901 (2000) (defendant unlawfully entered a residence with the intent to evade the police).  The Court noted in Wallace, that "the crime of trespass or any other crime related to the breaking and entering actions of burglary itself may not be considered . . . to be a 'crime therein.'"  Id., 735 n.7.  The "better practice" is to "instruct the jury on the statutory names and definitions of specific crimes for which there was sufficient evidence of an intent to commit."  State v. Zayas, 195 Conn. 611, 618 (1985).  See also State v. Flowers, 278 Conn. 533, 547 (2006) (court improperly instructed jury that the predicate crime was attempted assault); State v. Russell, 101 Conn. App. 298, 323, cert. denied, 284 Conn. 910 (2007) (violation of a protective order by entering a dwelling is not a legally viable predicate offense for burglary).

Lesser included offenses
Second degree burglary is not a lesser included offense of first degree burglary, because second degree requires that the entry be into a dwelling, while first degree only requires that it be a building.  State v. Coleman, 242 Conn. 523, 533 (1997).  In State v. Ward, 76 Conn. App. 779, 789-94, cert. denied, 264 Conn. 918 (2003), the Appellate Court distinguished Coleman based on the specificity of the charging documents, holding that second degree burglary could be a lesser included offense of first degree if the charging documents put the defendant on notice that the allegations against him were that he entered a dwelling at night, rather than simply a building.

Burglary in the third degree is a lesser included offense of burglary in the first degree.  State v. Grant, 177 Conn. 140, 147 (1979) (the distinguishing factor in first degree is the use of a weapon).

Criminal trespass in the second degree is a lesser included offense of burglary in the second degree with a firearm.  State v. White, 97 Conn. App. 763, 780, cert. denied, 280 Conn. 939 (2006) (building for purposes of criminal trespass comes within dwelling for burglary).

Burglary in the first degree and robbery in the first degree are separate offenses.  State v. Perez, 78 Conn. App. 610, 638-43, cert. denied, 271 Conn. 901 (2003).

Burglary in the first degree and criminal trespass in the first degree are separate offenses.  State v. Delgado, supra, 19 Conn. 253-55.


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