9.2-5 Burglary with a Firearm -- § 53a-102a and § 53a-103a
Revised to December 1, 2007Note: The degree of the offense depends on the degree of the underlying crime.
The defendant is charged [in count __] with burglary in the (second / third) degree with a firearm. The statute defining this offense reads in pertinent part as follows:
a person is guilty of burglary in the (second / third) degree with a firearm when (he/she) commits burglary in the (second / third) degree and in the commission of such offense (he/she) (uses / is armed with and threatens the use of / displays or represents by (his/her) words or conduct that (he/she) possesses) a pistol, revolver, rifle, shotgun, machine gun or other firearm.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Committed burglary
in the second or third degree
The first element is that the defendant committed burglary in the (second / third) degree. <See instruction for underlying crime:>
§ 53a-102: Burglary in the Second Degree, Instruction 9.2-3.
§ 53a-103: Burglary in the Third Degree, Instruction 9.2-4.
Element 2 - With a firearm
The second element is that in the commission of the burglary the defendant <insert as appropriate:>1
used a firearm.
was armed with and threatened the use of a firearm.
displayed or represented by (his/her) words or conduct that (he/she) possessed a firearm. [<If appropriate:> It is not required that what the defendant represents to be a firearm be loaded or that the defendant actually have a firearm. It need only be represented by words or conduct that (he/she) is so armed.]
<Describe specific allegations regarding firearm.> "Firearm" means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded, from which a shot may be discharged.2 You must find that the firearm was operable at the time of the incident.3
In summary, the state must prove beyond a reasonable doubt that <insert the concluding summary from the instruction for the underlying crime>, and that in the commission of the crime the defendant (used / was armed with and threatened the use of / displayed or represented by words or conduct that (he/she) possessed) a pistol, revolver, rifle, shotgun, machine gun or other firearm.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
burglary in the (second / third) degree with a firearm, 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 Carefully tailor this part of the instruction according to the nature of the conduct alleged and the type of firearm involved. See State v. Tomlin, 266 Conn. 608, 626-27 (2003) (allegation of "did shoot" only supported instructing on the first of three distinct methods of committing the offense).
On the elements, see State v. White, 97 Conn. App. 763, 777, cert. denied, 280 Conn. 939 (2006).
"No person shall be convicted of burglary in the second degree and burglary in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." General Statutes § 53a-102a (a).
"No person shall be convicted of
burglary in the third degree and burglary in the third degree with a firearm
upon the same transaction but such person may be charged and prosecuted for both
such offenses upon the same information." General Statutes § 53a-103a (a).