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VOLUME 7 - CHAPTER 78
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78 Table of Contents
78.4 Burglary: Consent, Claim Of Right, Etc.
78.4.1 Burglary: Consent Need Only Be Given By One Of Multiple Owners
78.4.2 Burglary: Mistake Of Fact As To Right Or Consent To Enter
78.4.3 Burglary: Defense Theory That Owner Or Occupant Cannot Commit Burglary Of His Or Her Own Property
78.4.4 Burglary: Defense Theory Of Lawful Authority To Enter Based On Co-Habitation
78.4.5 Burglary: Claim Of Right To Enter The Property
78.4.6 Burglary: Claim Of Right As To The Property Taken As A Defense Theory
78.4.7 Burglary: Defense Of Consent
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VOLUME 7 - CHAPTER 78
78.4.1 Burglary: Consent Need Only Be Given By One Of Multiple Owners
RATIONALE: When consent is a defense theory in a burglary prosecution involving more than one lawful occupant, the jury may not understand, without special instruction, that consent need only be given by one of the occupants.
POINTS AND AUTHORITIES: See State v. Hall (MN 1970) 176 NW2d 254, 260.
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.2.6 [Burglary].
See also generally, FORECITE National™ 305.3.10 [Consent].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 78.1.2 [Burglary: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
When two or more persons lawfully occupy a building or of the same part of a building, any one of those persons may consent to [the entry] [or] [remaining] of another person.
[See State v. Hall (MN 1970) 176 NW2d 254, 260; cf. MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 17.15 [Person In Lawful Possession- Defined] (West, 4th ed. 1999).]
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VOLUME 7 - CHAPTER 78
78.4.2 Burglary: Mistake Of Fact As To Right Or Consent To Enter
PRACTICE NOTE: A person who mistakenly believed that he or she had a right or consent to enter a building should not be guilty of burglary. (See People v. Gauze (CA 1975) 15 C3d 709, 714 [125 CR 773]; People v. Reed (NY 1986) 503 NYS2d 624, 625 [landlord entered apartment upon belief that tenant’s default gave landlord the right to enter]; see also Robinson, Criminal Law Defenses (West, 1984) § 110(b) p. 559; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-13 [Second Degree-Elements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996), comments citing People v. Gauze, 15 C3d at 714; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 16.07 [Burglary-Mental Intent–Model Charge—Commentary] p. 628 (West, 1999) [belief in consent reasonable and negated "knowing unlawful entry" element where defendant had frequently visited the premises by invitation].)
See also FORECITE National™ 252.6.6 [Consent: Property Crimes].
RESEARCH NOTES:
See generally, FORECITE National™ 305.2.6 [Burglary].
See also generally, FORECITE National™ 305.3.10 [Consent].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 78.1.2 [Burglary: Federal Circuit Model Instructions And Notes].
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VOLUME 7 - CHAPTER 78
78.4.3 Burglary: Defense Theory That Owner Or Occupant Cannot Commit Burglary Of His Or Her Own Property
RATIONALE: A person cannot burglarize his or her own property. Hence, even if the entry was for a felonious purpose, the defense theory may be based on the defendant's possessory interest in the property.
POINTS AND AUTHORITIES: An owner or lawful occupant of the property does not commit burglary by entering the property with felonious intent. (See People v. Gauze (CA 1975) 15 C3d 709, 714 [125 CR 773]; see also People v. Felix (CA 1994) 23 CA4th 1385, 1397 [28 CR2d 860].)
Consent is also a defense when the owner or lawful occupant "actively invites the accused to enter, knowing the illegal, felonious intention in the mind of the invitee." [Emphasis in original.] (Felix, 23 CA4th at 1397-98.) However, the occupant's knowledge is crucial. "The occupant must know the person he is inviting into the home intends to interfere with his possessory rights; and the invitee must be able to show the occupant possess this knowledge." (Felix, 23 CA4th at 1398; see also Strachn v. State (FL 1995) 661 So2d 1255, 1256; but see People v. Clayton (CA 1998) 65 CA4th 418, 422-23 [76 CR2d 536] [defendant given key by husband for purpose of killing wife constitutes burglary].)
Hence, the jury must determine from the evidence whether the defendant had an unconditional possessory right to enter. (See People v. Frye (CA 1998) 18 C4th 894, 954 [77 CR2d 25] [the proper test is whether the defendant had "an unconditional possessory right to enter"]; see also People v. Salemme (CA 1992) 2 CA4th 775, 779-81 [3 CR2d 398].)
See also FORECITE National™ 252.6.6 [Consent: Property Crimes].
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].
SAMPLE INSTRUCTION:
A burglary is not committed when the defendant had an unconditional possessory right to enter the premises.
If you have a reasonable doubt as to whether the defendant had an unconditional possessory right to enter the premises you must give the defendant the benefit of that doubt and find [him] [her] not guilt of burglary.
[Source: FORECITE National™.]
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VOLUME 7 - CHAPTER 78
78.4.4 Burglary: Defense Theory Of Lawful Authority To Enter Based On Cohabitation
PRACTICE NOTE: "If two persons share a dwelling neither can ordinarily commit burglary." (See generally LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.13(a), pp. 464-65, main volume.) For example, in State v. Steinbach (WI 1984) 679 P2d 369, 370, it was held that no burglary occurred where a fourteen year old girl, who had been removed from her mother’s home by court order, broke into the home. (But see State v. Kennedy (GA 1996) 467 SE2d 493, 494 [court expresses concern about the marital exemption to burglary].)
See also FORECITE National™ 78.4.3 [Burglary: Defense Theory That Owner Or Occupant Cannot Commit Burglary Of His Or Her Own 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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VOLUME 7 - CHAPTER 78
78.4.5 Burglary: Claim Of Right To Enter The Property
RATIONALE: A defense theory instruction may be necessary to assure the jury understands that the defendant's good faith claim of right to enter the property will negate the intent required for burglary.
POINTS AND AUTHORITIES: Just as a claim of right or authorization to enter the property may negate the necessary intent for criminal trespass (see FORECITE National™ 104.3.2 [Trespass: Claim Of Right As Defense Theory]), so too should it be available to negate the necessary intent for burglary. (See FORECITE National™ 252.6.6.1 [Burglary: Defense Of Consent]; see also FORECITE National™ 252.5 [Claim Of Right]; FORECITE National™ 103.1.3.2 [Theft/Larceny: Claim Of Right On Behalf Of Another]; see also FORECITE National™ 78.3.4 [Lack Of Necessary Intent At Time Of Entry].)
Hence, regardless of whether there actually was consent, the defendant's honest belief that he/she had consent should be a defense to burglary based on an intent to take property. (See e.g., Mills v. U.S. (DC Cir. 1955) 228 F2d 645 [no burglary if entry made with good faith belief that owner had consented to the entry and taking]; see also People v. McCann (MI 1972) 201 NW2d 345, 346; State v. Ippolito (NJ 1996) 671 A2d 165, 168.)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.2.6 [Burglary].
See also generally, FORECITE National™ 305.3.6 [Claim Of Right].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 78.1.2 [Burglary: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
The defendant's honest belief, even if unreasonably or mistakenly held, that [he] [she] [owned the property] [was authorized to enter the property] negates the felonious intent necessary to convict [him] [her] of [trespass] [burglary].
The prosecution must prove beyond a reasonable doubt that the defendant did not enter property under an honest belief that [he] [she] [owned the property] [was authorized to enter the property].
If you have a reasonable doubt as to whether the prosecution satisfied this burden, you must find that the defendant did not form the necessary felonious intent and return a verdict of not guilty.
[Source: FORECITE National™.]
SAMPLE INSTRUCTION # 2:
When someone takes property because [he/she] honestly believes that [he/she] has the right to [take / use] it, this is not larceny, even if the person who took it was mistaken.
[See People v. McCann (MI 1972) 201 NW2d 345, 346; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 22.3 [Honest Taking--Larceny] p. 22-7 (ICLE, 2nd ed. 2000/01).]
SAMPLE INSTRUCTION # 3:
Claim of right is not limited to situations in which a defendant believed he or she owned the property. It also includes those situations in which the defendant honestly, although not necessarily correctly, believed that he or she had either the right or the authorization to enter the property.
[See State v. Ippolito (NJ 1996) 671 A2d 165, 168; cf. NEW JERSEY MODEL JURY CHARGES - CRIMINAL Chap. 20 [Claim of Right Defense to Theft Offenses] ¶ 3 (New Jersey ICLE 4th ed. 1997).]
SAMPLE INSTRUCTION # 4:
A person who enters a building, believing that he or she had a right to do so, does not have the required intent for burglary even if the defendant's belief was mistaken.
Therefore, to prove the defendant guilty of burglary the prosecution must prove beyond a reasonable doubt that the defendant had an unlawful purpose or intention at the time (he/she) allegedly entered the property.
[Cf. A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 9.1 [General Larceny] p. 9-3, ¶ 1 & 2 (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).]
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VOLUME 7 - CHAPTER 78
78.4.6 Burglary: Claim Of Right As To The Property Taken As A Defense Theory
RATIONALE: Without a defense theory instruction the jury may not understand that a claim of right as to the property the defendant intended to take will negate the intent necessary for burglary.
POINTS AND AUTHORITIES: Where burglary requires a larcenous or felonious intent a claim of right to the property intended to be taken should negate that intent. (See FORECITE National™ 252.5 [Claim Of Right].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.2.6 [Burglary].
See also generally, FORECITE National™ 305.3.6 [Claim Of Right].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 78.1.2 [Burglary: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
The defendant's honest belief, even if mistakenly held, that [he] [she] had a right to take property within a building negates the intent necessary to convict [him] [her] of burglary.
The defendant need not show the claim of right was reasonable. An unreasonable belief that [he] [she] had a legal right to the property will suffice so long as the claim was made in good faith.
If the evidence raises a reasonable doubt as to whether defendant acted under a bona-fide belief in a right to enter the property you must find that defendant did not form the necessary criminal intent.
[Source: FORECITE National™.]
SAMPLE INSTRUCTION # 2:
When a person enters a building in the honest belief that he or she has a claim of right to property within the building, no burglary is committed. This is so even if the person who entered was mistaken about his or her right to the property.
Therefore, the prosecution must prove beyond a reasonable doubt that the defendant did not honestly believe that (he/she) had a right to enter the _____________.
[See People v. McCann (MI 1972) 201 NW2d 345, 346; cf. Michigan Criminal Jury Instructions (2d Ed.) (CJI2d) § 22.3.]
SAMPLE INSTRUCTION # 3:
The defendant's honest belief, even if mistakenly held, that [he] [she] had a right or claim to the possession of the property located within a building negates the felonious intent necessary to convict [him] [her] of burglary.
The defendant need not show the claim of right was reasonable. An unreasonable belief that [he] [she] had a legal right to take the property will suffice so long as the claim was made in good faith.
If, after considering all the evidence, you have a reasonable doubt whether the defendant had the intent necessary for burglary you must give the defendant the benefit of that doubt and find him/her not guilty.
[Source: FORECITE National™.]
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VOLUME 7 - CHAPTER 78
78.4.7 Burglary: Defense Of Consent
See FORECITE National™ 252.6.6.1 [Burglary: Defense Of Consent].
RESEARCH NOTES:
See generally, FORECITE National™ 305.2.6 [Burglary].
See also generally, FORECITE National™ 305.3.10 [Consent].
RELATED FEDERAL MODEL INSTRUCTIONS:
See generally, FORECITE National™ 78.1.2 [Burglary: Federal Circuit Model Instructions And Notes].