Conn. Crim. Jury Instr. 9.2

Burglary is not strictly a crime against property. See State v. MacFarlane, 188 Conn.

542, 553 (1982) (burglary entails a risk to persons who may be in a building). “It is clear from . .

. the comments by the commission to revise the criminal statutes that the basic rationale

underlying the enactment of all of our present burglary statutes was protection against the type of

invasion of premises likely to terrorize occupants.” State v. Belton, 190 Conn. 496, 506 (1983).

“The three degrees of the crime differ only in terms of aggravating factors for which the basic

rationale requires different treatment.” (Internal quotation marks omitted.) State v. Delgado, 19

Conn. App. 245, 254 (1989).

Intent to commit a crime

The jury does not have to be unanimous as to which specific crime the defendant

intended to commit inside the building as long as the defendant had the intent to commit some

crime. State v. Luster, 48 Conn. App. 872, 878-79, cert. denied, 246 Conn. 901 (1998). The

language “intent to commit a crime therein” does not require that the crime be one against people

or property within the building. State v. Wallace, 56 Conn. App. 730, 734-37 (defendant

unlawfully entered a residence with the intent to evade the police), cert. denied, 253 Conn. 901

(2000). The Court noted in Wallace, that “the crime of trespass or any other crime related to the

breaking and entering actions of burglary itself may not be considered . . . to be a ‘crime

therein.’” Id., 735 n.7. The “better practice” is to “instruct the jury on the statutory names and

definitions of specific crimes for which there was sufficient evidence of an intent to commit.”

State v. Zayas, 195 Conn. 611, 618 (1985). See also State v. Flowers, 278 Conn. 533, 547

(2006) (court improperly instructed jury that the predicate crime was attempted assault); State v.

Russell, 101 Conn. App. 298, 323 (violation of a protective order by entering a dwelling is not a

legally viable predicate offense for burglary), cert. denied, 284 Conn. 910 (2007).

Lesser included offenses

Second degree burglary is not a lesser included offense of first degree burglary, because

second degree requires that the entry be into a dwelling, while first degree only requires that it be

a building. State v. Coleman, 242 Conn. 523, 533 (1997). In State v. Ward, 76 Conn. App. 779,

789-94, cert. denied, 264 Conn. 918 (2003), the Appellate Court distinguished Coleman based on

the specificity of the charging documents, holding that second degree burglary could be a lesser

included offense of first degree if the charging documents put the defendant on notice that the

allegations against him were that he entered a dwelling at night, rather than simply a building.

Burglary in the third degree is a lesser included offense of burglary in the first degree.

State v. Grant, 177 Conn. 140, 147 (1979) (the distinguishing factor in first degree is the use of a

weapon).

Criminal trespass in the second degree is a lesser included offense of burglary in the

second degree with a firearm. State v. White, 97 Conn. App. 763, 780 (building for purposes of

criminal trespass comes within dwelling for burglary), cert. denied, 280 Conn. 939 (2006).

Burglary in the first degree and robbery in the first degree are separate offenses. State v.

Perez, 78 Conn. App. 610, 638-43, cert. denied, 271 Conn. 901 (2003).

Burglary in the first degree and criminal trespass in the first degree are separate offenses.

State v. Delgado, supra, 19 Conn. 253-55.