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Criminal Jury Instructions  

Criminal Jury Instructions

 

ENTERS OR REMAINS UNLAWFULLY

A person "enters or remains unlawfully" in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.  

Source:  General Statutes § 53a-100 (b) (applies to Part VIII:  Burglary, Criminal Trespass, Arson, Criminal Mischief, §§ 53a-101 -- 53a-117m).

Commentary:  Depending on the facts, unlawful entry and unlawful remaining may be conceptually distinct.  "To enter unlawfully means to accomplish an entry by unlawful means, while to remain unlawfully means that the initial entering of the building . . . was lawful but the presence therein became unlawful because the right, privilege or license to remain was extinguished."  State v. Weaver, 85 Conn. App. 329, 342, cert. denied, 271 Conn. 942 (2004); see also State v. Clark, 48 Conn. App. 812, 822, cert. denied, 245 Conn. 921 (1998); State v. Edwards, 10 Conn. App. 503, 513, cert. denied, 204 Conn. 808 (1987).  In other cases, a person's acts of entering and remaining may be conceptually indistinct and inseparable.  "[T]he defendant's conduct constituted one continuous course of unlawful conduct, namely, that he entered the apartment unlawfully and remained there without any change in his legal status.  Under these circumstances, the unlawfulness of his entry determined the unlawfulness of his remaining.  The two inexorably intertwined acts were conceptually indistinct."  State v. Delgado, 19 Conn. App. 245, 249 (1989); see also State v. Austin, 59 Conn. App. 305, 310, cert. denied, 255 Conn. 912 (2000); State v. Moales, 41 Conn. App. 817, 824-26, cert. denied, 239 Conn. 908 (1996).  The court's instruction should be tailored to the allegations.  See State v. Belton, 190 Conn. 496, 502 (1983) (by giving an expansive instruction when the information only alleged that the defendant "unlawfully entered" the building, the court "effectively enlarged the offense as stated in the information").

"[A]n entry occurs with any penetration, however slight, of the space within the . . . building by the defendant, or by any part of his body."  (Citations omitted; internal quotation marks omitted.)  State v. Weaver, 85 Conn. App. 329, 342, cert. denied, 271 Conn. 942 (2004).  Force is not required.  "Forcible entry, with or without damage, is not an element of burglary."  State v. Garrett, 42 Conn. App. 507, 513, cert. denied, 239 Conn. 928-29 (1996).  It may, however, be relevant to the defendant's intent to commit a crime.  State v. Ward, 76 Conn. App. 779, 799, cert. denied, 264 Conn. 918 (2004).

"The phrase 'licensed or privileged,' as used in General Statutes § 53a-100 (b) is meant as a unitary phrase, rather than as a reference to two separate concepts."  State v. Grant, 6 Conn. App. 24, 30 (1986).  "In general, a license or privilege to enter premises may derive from a transaction between the possessor and the actor, or may arise irrespective of any such transaction.  Examples of those that arise from such a transaction involve situations in which there is a present consent, or there was a past consent, creating a license to enter.  Examples of those that arise irrespective of previous transactions between the parties involves situations in which the possessor acted tortiously toward the actor, or when public policy creates the license or privilege."  Id., 30-31.  See State v. Hersey, 78 Conn. App. 141, cert. denied, 266 Conn. 903 (2003) (entering a home in violation of a protective order is entering "without license or privilege"); State v. Stagnitta, 74 Conn. App. 607, 615-17, cert. denied, 263 Conn. 902 (2003) (though an employee may have had the right to enter the office of the restaurant, that right did not extend to entering the office "displaying an eight to ten inch knife and demanding money").    

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