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Criminal Jury Instructions

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9.2-3  Burglary in the Second Degree -- § 53a-102

Revised to November 1, 2008

The defendant is charged [in count __] with burglary in the second degree.  The statute defining this offense reads in pertinent part as follows: 

a person is guilty of burglary in the second degree when such person unlawfully (enters / remains in)1 a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Entered/remained in dwelling
The first element is that the defendant knowingly and unlawfully (entered / remained in) a dwelling.  A person acts "knowingly" with respect to conduct or circumstances when (he/she) is aware that (his/her) conduct is of such nature or that such circumstances exist.  <See Knowledge, Instruction 2.3-3.>

"Dwelling" means a building that is usually occupied by a person lodging therein at night.  Therefore, a structure that cannot possibly be occupied as a lodging cannot be a dwelling. 

You must also determine whether the defendant unlawfully (entered / remained in) the dwelling.  A person unlawfully (enters / remains in) a dwelling when (he/she) 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 dwelling or have some other right to be in the dwelling.

[To "enter" a dwelling the intruder need not necessarily place (his/her) entire body inside the dwelling.  Inserting any part of (his/her) body, or an implement or weapon held by (him/her), within the dwelling is sufficient to constitute such 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 a dwelling lawfully, that is, (he/she) had the right or had been given permission, but that right is terminated or the permission withdrawn by someone who had a right to terminate or withdraw it.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 dwelling under these circumstances.]

Element 2 - Intent to commit a crime
The second element is that the defendant intended to commit a crime in that dwelling.  A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result.  <See Intent: Specific, Instruction 2.3-1.>

Even if the defendant never actually committed a crime in the dwelling, if the evidence establishes beyond a reasonable doubt that (he/she) was there with such intention, this is sufficient to prove that the defendant unlawfully (entered / remained in) the dwelling with the intent to commit a crime therein.  Furthermore, the necessary intent to commit a crime must be an intent to commit either a felony or a misdemeanor in addition to the unlawful entering or remaining in the dwelling.

In this case, the state claims that the defendant intended to commit <insert crime>. <Refer to the count in which this crime is charged or, if uncharged, give the elements of the crime.>

Element 3 - Persons present in dwelling
The third element is that when the defendant (entered / remained in) the dwelling, a person other than a participant in the crime was actually present in the dwelling.

Conclusion

In summary, the state must prove beyond a reasonable doubt that the defendant 1) unlawfully (entered / remained in) a dwelling, 2) (he/she) had the intent to commit a crime, and 3) a person other then a participant in the crime was actually present in the dwelling.

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 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.
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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.
 


 

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