Instruction 8.104, Criminal Model Jury Instructions for Use in the District Court

BREAKING AND ENTERING IN THE DAYTIME

TO A BUILDING, SHIP, MOTOR VEHICLE OR VESSEL

WITH INTENT TO COMMIT A FELONY

(NO PERSON THEREIN BEING PUT IN FEAR)

G.L. c. 266, § 18 - Part II

The defendant is charged with breaking and entering into a

(building) (ship) (motor vehicle) (vessel) with intent to commit a

felony. To prove the defendant guilty of this offense, the

Commonwealth must prove three things beyond a reasonable doubt:

First: That the defendant broke into someone else’s (building)

(ship) (vessel) (vehicle);

Second: That the defendant entered that (building) (ship) (vessel)

(vehicle);

Third: That the defendant did so with the intent to commit a felony

in that (building) (ship) (vessel) (vehicle).

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant exerted physical force,

however slight, and thereby removed an obstruction to gaining entry

into someone else’s (building) (ship) (vessel) (vehicle). Breaking

includes moving in a significant manner anything that barred the way

into the (building) (ship) (vessel) (vehicle). Examples would include

such things as (opening a closed door whether locked or unlocked)

(opening a closed window whether locked or unlocked) (going in

through an open window that is not intended for use as an entrance).

On the other hand, going through an unobstructed entrance such as

an open door does not constitute breaking.

Commonwealth v. Burke, 392 Mass. 688, 689–690 (1984) (shattering outer storm window

was breaking); Commonwealth v. Tilley, 355 Mass. 507, 508–509 (1969) (reasonable to

infer that intruders “moved to a material degree something that barred the way” and did

not enter through unobstructed entrance; entry through an open window not intended for

use as an entry was breaking); Commonwealth v. Shedd, 140 Mass. 451, 453 (1886)

(opening closed window was breaking); Commonwealth v. Hall, 48 Mass. App. Ct. 727,

731 (2000) (entry through open window was breaking). See Commonwealth v. Jeffrey

Pearson, 72 Mass. App. Ct. 1101 (unpublished) (leaning torso and arms through car

window was breaking).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant in fact entered the

(building) (ship) (vessel) (vehicle). An entry occurs when there is any

intrusion - no matter how slight - into a protected enclosure by any

part of the defendant’s body. (An entry is not proven if all that passed

over the threshold was an object controlled by the defendant unless

that object was used to commit a felony inside the (building) (ship)

(vessel) (vehicle).)

Commonwealth v. Cotto, 52 Mass. App. Ct. 225, 229 (2001), further appellate review

denied, 435 Mass. 1101 (entry occurs when any part of defendant's body, or an instrument

used to commit the intended felony, crosses the threshold). See also Commonwealth v.

Burke, 392 Mass. at 691 (reaching between outer and inner window with a tool, but not a

hand, insufficient); Commonwealth v. Lewis, 346 Mass. 373, 377 (1963) (reasonable to

infer that some portion of defendant’s hand or arm entered house in course of opening

door).

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that at the time the defendant entered the

(building) (ship) (vessel) (vehicle), the defendant had the specific

intent to commit a crime that is a felony. A person’s intent is their

purpose or objective. This requires you to make a decision about the

defendant’s state of mind at that time. You may examine any actions

or words of the defendant, and all of the surrounding circumstances,

to help you determine what the defendant’s intent was at that time.

As I just said, the defendant must, at the time they entered, have

intended to commit a felony. A felony is an offense for which a

person may be sentenced to state prison. The offense(s) of [name of

offense(s)] is (are) punishable by a sentence to state prison. (While the

Commonwealth is not required to prove that the defendant intended

to commit any particular felony, it must prove that at the time of the

break the defendant intended to commit a crime that is a felony.)

Rogan v. Commonwealth, 415 Mass. 376, 379 (1993) (jury may find intent to commit an

unspecified felony); Commonwealth v. Poff, 56 Mass. App. Ct. 201, 203 (2002) (felonious

intent must be present at the time of the breaking and entering); Commonwealth v.

Clemente, 25 Mass. App. Ct. 229, 235 n.10 (1988) (statute apparently does not require

an intent to commit a felony in the same building into which the break was made).

If the Commonwealth has proved all three elements of the

offense beyond a reasonable doubt, you should return a verdict of

guilty. If the Commonwealth has failed to prove one or more of the

elements beyond a reasonable doubt, you must find the defendant not

guilty.

SUPPLEMENTAL INSTRUCTIONS

1. Trick or threat. A person may be convicted if they convinced or

compelled an innocent person by trick or threat to assist them in the

break.

Commonwealth v. Lockwood, 95 Mass. App. Ct. 189, 193 (2019) (“Compelling another to

open a closed door so as to gain entry, whether by agreement, trickery, force, or - as

here - fear, is sufficient to constitute a breaking even though it is accomplished by indirect

means.”); Commonwealth v. Labare, 11 Mass. App. Ct. 370, 377 (1981) (phony name).

2. When the Commonwealth alleges intent to steal. (Stealing property under

the protection of a building when it has been placed there for

safekeeping and is not under the eye or personal care of someone is

a felony.) (Stealing property valued at over $1,200 is a felony.) You

are permitted to draw an inference that the defendant intended to

steal (in a building) (more than $1,200) if you think it reasonable

based on the evidence. You are not required to draw such an

inference, but you may, if it is supported by the evidence.

Commonwealth v. McGovern, 397 Mass. 863, 868 (1986) (when a person forcefully

enters a building without right, it is fair to infer intent to steal); Commonwealth v. Hughes,

380 Mass. 596, 602–604 (1980) (dwelling); Commonwealth v. Wygrzywalski, 362 Mass.

790, 792 (1973) (store); Commonwealth v. Eppich, 342 Mass. 487, 493 (1961) (same);

Commonwealth v. Ronchetti, 333 Mass. 78, 81 (1955) (inference permissible even where

defendant attacked homeowner, apparently spontaneously); Commonwealth v. Shedd,

140 Mass. 451, 453 (1886) (jury may make inference based on circumstances, including

“conduct and declarations” of defendant). See G.L. c. 266, § 20; G.L. c. 266, § 30 (1).