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VOLUME 7 - CHAPTER 78
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78.3 Burglary: Defenses And Defense Theories

    78.3.4 Lack Of Necessary Intent At Time Of Entry

    78.3.4.1 Burglary: Requirement Of Intent
    78.3.4.2 Burglary: Defense Theory That The Necessary Intent Was Not Formed Until After The Entry
    78.3.4.3 Burglary: Requirement Of Intent To Commit A Crime Against Property Or A Person
    78.3.4.4 Burglary: Theory That Defendant's Actions After Entry Are Relevant To Show Lack Of Criminal Intent
    78.3.4.5 Burglary: Defense Theory That There Was No Intent To Permanently Deprive
    78.3.4.6 Burglary: Defense Theory Based On Lack Of Intent To Commit The Intended Crime In The Building Entered
    78.3.4.7 Burglary: Intent To Steal Or Commit A Felony May Not Be Inferred Solely From Unauthorized Entering
    78.3.4.8 Burglary: Defense Theory That The Jury Should Be Instructed On The Definitional Elements Of The Intended Crime
    78.3.4.9 Burglary: Defense Theory That The Intended Crime Was A Lesser Included Misdemeanor Of The Alleged Felony
    78.3.4.10 Burglary: Lack Of Notice As To Intended Crime As Defense Theory
    78.3.4.11 Burglary: Intent When Entering Interior Room Not Substitute For Intent When Initially Entering The Building
    78.3.4.12 Entry With Intent To Commit A Crime Which Is Already Completed Is Not Burglary

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VOLUME 7 - CHAPTER 78

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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RATIONALE: Concurrence of intent and entry is an essential element of burglary. A specific instruction on the concurrence of entry and intent may be especially important where the suspect and victim were known to one another, or where, for any other reason, there is an issue as to whether the defendant had felonious or larcenous intent at the time of entry.

POINTS AND AUTHORITIES: Concurrence of entry and felonious or larcenous intent is an explicit, enumerated element of the crime of burglary in many state statutes. (See e.g., U.S. v. Cooper (DC Cir. 1972) 473 F2d 95, 96; Cooper v. People (CO 1999) 973 P2d 1234, 1239; Hawthorne v. U.S. (DC 1984) 476 A2d 164, 168; State v. Williams (ID 1982) 651 P2d 569, 572; Bellamy v. State (IN 1975) 330 NE2d 377, 380; Commonwealth v. Franklin (PA 1982) 452 A2d 797, 799.) Hence, there must be concurrence of act and intent between the act of entry and the required intent to commit theft or another crime. (See e.g., People v. Gaines (NY 1989) 546 NE2d 913, 915; (MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:06, comment [Burglary-First Degree] para. 7 (Micpel, 1999); Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 16:01 [Burglary-Nature And Definition Of Offense] (West, 1999).)

    This is true whether the initial entry is apparently permissible or impermissible. (See e.g., Hedges v. Commonwealth (KY 1996) 937 SW2d 703, 706 [burglary not committed where defendant entered premises with permission but subsequently damaged property and assaulted the victim; victim never asked defendant to leave so his presence on premises was not "unlawful"]; see also Robey v. Commonwealth (KY 1997) 943 SW2d 616, 619 [defendant improperly convicted of burglary where premises were entered with permission and victim never specifically withdrew the permission despite being raped].)

    Some jurisdictions also require knowledge that the entry itself was without permission.  (See T.S.J. v. State (FL 1983) 439 So2d 966, 967.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.7; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

    The prosecution must prove all elements of the charge beyond a reasonable doubt including that the defendant had the intent to commit [larceny] [a felony] [the crime of _______] at the time he [allegedly] entered the dwelling.

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PRACTICE NOTE: The crime of burglary is committed when a person intentionally enters (or, in some jurisdictions, remains) unlawfully on premises with the intent to commit a crime against a person or property. (See LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.13(e); see also People v. Jiminez (CO 1982) 651 P2d 395, 396 [a person commits second degree burglary, if he knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property]; State v. Robins (HI 1983) 660 P2d 39, 41; State v. Schroeder (WA 1992) 834 P2d 105, 108.)

    Accordingly, burglary may not be predicated upon an intent to violate a law not involving direct harm to a person or property such as the Federal Communications Act. (See e.g., U.S. v. Frank (DC 1964) 225 FSupp. 573, 575.)

    Similarly, in State v. O’Neill (WI 1984) 359 NW2d 906, 908, held that an intent to conduct an illegal search by a college campus police supervisor, although a statutory felony (i.e., misconduct in public office), was not the type of felony contemplated for purposes of burglary.

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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RATIONALE: Some pattern instructions tell the jury that it is immaterial whether the intent with which the entry was "made was thereafter carried out." (See e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 14.50 [Burglary- Defined] (West, 6th Ed. 1996).) This may be technically correct, but it is definitely misleading. A proper instruction should tell the jury that the absence of an attempt to commit theft or a felony after entry may be considered as circumstantial evidence that there was no such intent at the time of entry.

POINTS AND AUTHORITIES: In a burglary prosecution the prosecution must prove that the entry was made with the intent to commit theft or some other felony. (See e.g., People v. Markus (CA 1978) 82 CA3d 477, 481 [147 CR 151].) Because direct evidence of intent is seldom available, however, burglary prosecutions must often rest upon circumstantial evidence to show intent. (See e.g., People v. Earl (CA 1973) 29 CA3d 894, 896 [105 CR 831].) Circumstances surrounding the entry -- such as possession of burglary tools -- are viewed as the type of circumstantial evidence which can give rise to an inference that the defendant intended to commit theft when he entered the premises. (See e.g., People v. Nichols (CA 1961) 196 CA2d 223, 226-27 [16 CR 328].)

    In this context, one fact the courts have long relied upon to support an inference of intent to steal is the fact that the defendant, in fact, did steal. (See e.g., People v. Wolfe (CA 1967) 257 CA2d 420, 425 [64 CR 855] [defendant's possession of items stolen from burglarized premises is a circumstances "supporting the necessary implied finding that when defendant entered the ... residence he did so with the intent to commit theft therein ...."]; People v. Earl 29 CA3d at 897; People v. Holley (CA 1961) 194 CA2d 538, 540-41 [15 CR 44].) These cases recognize the practical reality that a defendant's theft of items from the burglarized premises is strong circumstantial evidence that when that defendant entered the premises, he intended to steal.

    The obvious corollary to this principle is that when nothing is stolen from a burglarized premise, a defendant should be able to argue that this constitutes circumstantial evidence that the defendant did not intend to steal when he entered the premise. This does not mean that the lack of a theft precludes a conclusion that the defendant harbored the requisite intent. Rather, it simply means that the fact that a defendant has not carried out a theft is legitimate circumstantial evidence of his intent. It may not be considered persuasive by the jury, but it deserves to be considered.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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    78.3.4.5    Burglary: Defense Theory That There Was No Intent To Permanently Deprive

PRACTICE NOTE: Temporary removal of property from the premises cannot provide the basis for the crime of theft or burglary based on theft. (People v. Kwok (CA 1998) 63 CA4th 1236, 1248 [75 CR2d 40].) This is so because theft requires an intent to permanently deprive the owner of his or her property. (Ibid; see also People v. Dingle (CA 1985) 174 CA3d 21, 29-30 [219 CR 707].)

    See FORECITE National™ 78.4.5 [Burglary: Claim Of Right To Enter The Property].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: When the building was entered as a means of committing a theft or felony at some other location, there may be a defense theory available if the original entry and subsequent crime are not sufficiently linked by a "single and practically continuous action."

    When the intended crime is not committed in the building entered, the crime may be burglary if, at the time of entry, the defendant intended to commit the offense in the "immediate vicinity" of the place entered by defendant, if the entry was made as a means of facilitating the commission of the theft or felony, and if the two places were so closely connected that intent and consummation of the crime would constitute a "single and practically continuous action." (People v. Wright (CA 1962) 206 CA2d 184, 191 [23 CR 734]; see also People v. Ortega (CA 1992) 11 CA4th 691, 696 [14 CR2d 246].)

NOTE: In Ortega the court held that the "immediate vicinity" requirement is inapplicable to an entry with the intent to commit extortion. Upon such unlawful entry, "an extortionist need only intend that the entry be linked to the extortion so as to constitute a part of continuous transaction." (Ortega, 11 CA4th at 696.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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RATIONALE: Without an explanatory instruction the jury may improperly speculate about the defendant's intent simply based on an unauthorized entry which does not in itself provide sufficient evidence of intent.

POINTS AND AUTHORITIES: Intent to steal should not be inferred from the fact of the entry alone. (State v. Barclay (WI 1972) 196 NW2d 745, 746.)  "[A]dditional circumstances such as time, nature of the place entered, method of entry, identity of the accused and other circumstances, without proof of actual larceny, can be sufficient to permit a reasonable person to conclude the defendant entered with intent to steal." [Internal quotation marks omitted.] (Ibid.; see also People v. Noel (MI 1983) 332 NW2d 578, 581; State v. Johnson (OR 1981) 637 P2d 211, 213 [error to instruct the jury that it could infer an unlawful and specific intent to steal from the act of unlawful entry]; see also MICHIGAN CRIMINAL JURY INSTRUCTIONS 25.1, commentary [Breaking And Entering] (ICLE, 2nd ed. 1999).)

    Logically, the same principle applies in cases where the predicate crime is a felony other than larceny.

    See also FORECITE National™ 103.3.2.2 [Auto Theft: Intent To Joyride Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 2.4; 4.1].

BRIEFING AVAILABLE: Click here.  [Brief Bank # B-919].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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    78.3.4.8    Burglary: Defense Theory That The Jury Should Be Instructed On The Definitional Elements Of The Intended Crime

PRACTICE NOTE: "In a burglary prosecution one of the elements which the State must prove is 'intent to commit a crime against a person or property.' [Citation.] To define this element, the court must define a 'crime,' for the jury may otherwise convict a defendant for unlawful entry with intent to commit an act which the jury believes, but which is actually not, a crime. [Citation.] The only method of effectively defining 'crime' is to specify and then define whatever possible crimes the defendant may have intended in the particular case." (Washington v. Johnson (WA 1983) 674 P2d 145, 155.)

    "Specification of the crime or crimes a burglary defendant allegedly intended to commit is necessary for another reason as well ... [A] jury should be allowed to consider alternative methods of committing a crime only if there is substantial evidence supporting each alternative. Where intent to commit one of any number of crimes is an element of an offense ... this limitation can be applied only when the instructions specify the various crimes the defendant may have intended to commit. [Citation.] Absent specification, it is impossible to prevent the jury from unguided speculation as to any and all criminal acts it might imagine." (Id. at 156; see also People v. Failla (CA 1966) 64 C2d 560, 564-65 [51 CR 103]; State v. Mesch (IA 1997) 574 NW2d 10, 15 [state must specify which felony it believes an attempted burglar intended to commit and court must instruct on the elements constituting such felony]; People v. Palmer (IL 1980) 404 NE2d 853, 855; State v. Linn (KS 1992) 840 P2d 1133, 1139 ["... failure to state the specific underlying felony or felonies and their elements prevented the jury from rendering a lawful verdict and was an error of constitutional magnitude depriving the defendant of a fair trial"]; State v. Sanders (OR 1977) 572 P2d 1307, 1308 [intent of defendant must be specified]; Champlain v. State (WI 1972) 93 NW2d 868, 872.)

    Hence, the instructions defining burglary should specify the statutory elements of the offense intended by an accused in making the unauthorized entry. (See State v. Linn (KS 1992) 840 P2d 1133, 1138; State v. Rush (KS 1994) 859 P2d 387, 389; State v. Elliot (NC 1974) 205 SE2d 106 [failure to define the underlying crime of larceny may constitute reversible error]; see also PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 59.17 [Crimes Against Property-Burglary] comment p. 362 (Kansas Judicial Council, 3rd ed. 1999); PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 15.3502 Committee Note [Burglary] (Pennsylvania Bar Institute, PBI Press, 09/95) [court should name and define the "object crime"].)

    Some jurisdictions require that the predicate felony be defined in every case. For example, in Illinois the instruction committee recommends that, at the request of either party, or sua sponte, the court define the offense (theft or the specified felony) alleged as the objective of the burglary. (ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th d 14.07, note [Definition Of Burglary- Unauthorized Entry] (West, 4th ed. 2000).)

    Other jurisdictions require instruction only when there is a dispute about an element of the predicate felony.  (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1424 [Burglary With Intent To Commit A Felony], comment p. 9 (University of Wisconsin Law School, 2000).)

    Moreover, even if the instructions need not ordinarily specify the crime that the defendant intended to commit inside the burglarized premises, the crime must be specified if it is material to the defendant’s theory of the case. (See State v. Bergeron (WA 1985) 711 P2d 1000, 1009-10; but see State v. Pollnow (WA 1993) 848 P2d 1265, 1267 [instructions did not need to include elements of theft even though defendant asserted good faith claim of title; but no express consideration of Bergeron rule].)

    See also FORECITE National™ 58.1 [Defense Theory That Predicate Crime Must Be Identified And Defined].

    See also FORECITE National™ 78.3.4.10 [Burglary: Lack Of Notice As To Intended Crime As Defense Theory].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 92.9.4.7 [Felony Murder: Instruction On Misdemeanor As Lesser Included Offense Of Burglary].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The general rule is that the jury need not agree upon what particular intent the defendant had when entering the building for purposes of burglary. (See, People v. Failla (CA 1966) 64 C2d 560, 567-69 [51 CR 103].) However, this rule does not relieve the prosecution of its responsibility to provide notice of which intent it seeks to prove. (See State v. Johnson (WA 1983) 674 P2d 145, 156 relying on State v. Bonds (WA 1982) 653 P2d 1024.) Due process requires that an accused be advised of the charges against him so he may have a reasonable opportunity to prepare and present his defense. (In re Oliver (1948) 333 US 257, 273 [68 SCt 499; 92 LEd 682]; Cooke v. U.S. (1925) 267 US 517, 536-37 [45 SCt 390; 69 LEd 767].) "A person cannot be convicted of an offense (other than a necessarily included offense) not charged against him by indictment or information, whether or not there was evidence at trial to show that he had committed that offense. [Citations.]" (In re Hess (CA 1955) 45 C2d 171, 174-75 [288 P2d 5].) Therefore, instruction upon an intent predicate to burglary which was not charged in the information (e.g., rape when theft was charged) violates the due process principles of the 14th Amendment. (See e.g., FORECITE National™ 92.9.4.2 [Failure To Charge Felony Murder As Defense Theory]; People v. O'Keefe UNPUBLISHED PORTION (CA 1990) 222 CA3d 517 [271 CR 769]; but see People v. Jones (CA 1990) 51 C3d 294, 317 [270 CR 611] [preliminary hearing is sufficient to provide the defendant notice].)

    For example, People v. Holt (CA 1997) 15 C4th 619, 671-72 [63 CR2d 782] recognized that the failure to charge the specific intended felony in a burglary prosecution could implicate the notice, due process and fair trial guarantees of the 6th and 14th Amendments of the United States Constitution. However, to preserve such an error the defendant will normally be expected to demur on the ground that the charging allegation is not sufficiently definite. Additionally, waiver of the error may occur if the defendant does not object to the jury instructions. (Holt, 15 C4th at 672.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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RATIONALE: The jury may not understand that burglary cannot be premised upon the entry of an interior room. Therefore, it may be necessary to specifically instruct the jury that it is not sufficient that the defendant had the necessary intent when the interior room was entered if the intent was not present when the building was originally entered.

POINTS AND AUTHORITIES: When a burglary is charged the required intent to commit another offense must be present when the building or structure is entered. (See FORECITE National™ 78.3.4.6 [Burglary: Defense Theory Based On Lack Of Intent To Commit The Intended Crime In The Building Entered]; compare FORECITE National™ 78.2.2 [Challenge To Multiple Burglary Counts Based On Entry Of Multiple Rooms In A Single Structure]; see also FORECITE National™ Chapter 79 [Unlawful Remaining In A Building Or Structure].) Hence, because an interior room in a dwelling occupied by a single tenant does not qualify as a separate unit or building for purposes of burglary (see FORECITE National™ 78.2.2 [Challenge To Multiple Burglary Counts Based On Entry Of Multiple Rooms In A Single Structure]; see also State v. Thomson (WA 1993) 861 P2d 492, 495), the intent when entering an interior room should not substitute for the intent required when originally entering the building.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See Lawhorn v. State (TX 1995) 898 SW2d 886, 892 [defendant not guilty of crime of burglary with intent to commit felony escape, because even if defendant thought he was escaping at the time of entry, as a matter of law the crime of escape was completed earlier].

RESEARCH NOTES:

See generally, FORECITE National™ 305.2.6 [Burglary].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 78.1.2 [Burglary:  Federal Circuit Model Instructions And Notes].