Instruction 8.106, Criminal Model Jury Instructions for Use in the District Court

BREAKING & ENTERING A

(BUILDING) (SHIP) (VESSEL) (VEHICLE)

WITH INTENT TO COMMIT A MISDEMEANOR

G.L. c. 266, § 16A

The defendant is charged with breaking and entering a (building)

(ship) (vessel) (vehicle) with intent to commit a misdemeanor. 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); and

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

misdemeanor 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

to 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 a 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 Ct. 1101 (2008) (unpublished) (leaning torso and arms through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 broke into

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

intent to commit a crime that is a misdemeanor. 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 have intended to commit a

misdemeanor at the time of the break. A misdemeanor is an offense

for which a person may not be sentenced to state prison. The

offense(s) of [name of offense(s)] is (are) not punishable by a sentence to

state prison. (While the Commonwealth is not required to prove that

the defendant intended to commit any particular misdemeanor, it

must prove that at the time of the break the defendant intended to

commit a crime that is a misdemeanor.)

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). G.L. c.

278, § 10. Commonwealth v. Kingsbury, 378 Mass. 751, 752–754 (1979); Commonwealth

v. Bergstrom, 10 Mass. App. Ct. 838, 838–839 (1980); Commonwealth v. Servidori, 6

Mass. App. Ct. 969, 969 (1979).

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 INSTRUCTION

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).