9.4-2 Criminal Trespass in the First Degree -- § 53a-107 (a) (2) and (3)
Revised to December 1, 2007
Note: Subsection (a) (2) concerns restraining orders and protective orders issued by a Connecticut court and subsection (a) (3) concerns foreign orders of protection. Tailor the instruction accordingly.
The defendant is charged [in count __] with criminal trespass in the first degree. The statute defining this offense reads in pertinent part as follows:
a person is guilty of criminal trespass in the first degree when such person (enters / remains in)1 a building or any other premises in violation of a (restraining order / protective order / foreign order of protection).2
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Entered or remained
The first element is that the defendant (entered / remained in) a building or other premises.
<Include only as much of the statutory definition that is supported by the allegations in the information and the evidence in the case:> "Building" in addition to its ordinary meaning, includes any watercraft, aircraft, trailer, sleeping car, railroad car, other structure or vehicle or any building with a valid certificate of occupancy. 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 part of such building, a separate building.
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 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 the (building / public land) 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 / on the land) under these circumstances.]
Element 2 - Order
The second element is that the defendant, by (entering / remaining in) <identify building> was in violation of a (restraining order / a protective order / foreign order of protection).
In summary, the state must prove beyond a reasonable doubt that 1) the defendant (entered / remained in) <identify premises>, and 2) this was in violation of a (restraining order / protective order / foreign order of protection).
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
criminal trespass 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 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.
2 A restraining order issued pursuant to § 46b-15; a protective order issued pursuant to §§ 46b-38c, 54-1k, or 54-82r; foreign order of protection as defined by § 46b-15a. If the violation is charged in a separate count, you may simply refer the jury to the instructions on that count.
In State v. Bell, 55 Conn. App. 475, 485, cert. denied, 252 Conn. 908 (1999), the court order prohibited the defendant from entering the building, so he could not be prosecuted for being on the premises outside the building.
The validity of the underlying order cannot be challenged in a prosecution under this statute. See State v. Wright, 273 Conn. 418 (2005) (validity of underlying order not an element of violation of a protective order).
It is not a violation of double
jeopardy to be convicted of both criminal trespass and violation of a protective
order. State v. Quint, 97 Conn. App. 72, 80-83, cert. denied, 280 Conn.