Instruction 8.108, Criminal Model Jury Instructions for Use in the District Court

ENTERING (WITHOUT BREAKING) A

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

IN THE NIGHTTIME

WITH INTENT TO COMMIT A FELONY

PUTTING A PERSON THEREIN IN FEAR

G.L. c. 266, § 17 – Part I

The defendant is charged with entering a (building) (ship)

(vessel) (vehicle) in the nighttime with intent to commit a felony,

thereby putting a person lawfully therein in fear. To prove the

defendant guilty of this offense, the Commonwealth must prove four

things beyond a reasonable doubt:

First: That the defendant entered someone else’s (building) (ship)

(vessel) (vehicle);

Second: That the defendant did so during the nighttime;

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

in that (building) (ship) (vessel) (vehicle); and

Fourth: That a person who was lawfully inside was put in fear.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant entered someone

else’s (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).) The Commonwealth is not required to prove

that the defendant broke into the (building) (ship) (vessel) (vehicle),

but it must prove that the defendant entered it.

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 second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant entered in the

nighttime. The law is that “nighttime” begins one hour after sunset

and ends one hour before sunrise the next day, measured according

to the mean, or average, time at that time of year in the place where

the offense was allegedly committed. The Commonwealth may prove

that it was nighttime by (presenting evidence that it was completely

dark outside at the time of the offense) (offering an almanac or other

reference book to show the time of sunset or sunrise on that day)

(asking you as jurors to rely on your common knowledge of

approximately when the sun rises or sets on [date] in the place where

the offense was allegedly committed). In the end, you must be

convinced beyond a reasonable doubt that the crime occurred

sometime between one hour after sunset and one hour before

sunrise.

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).

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

any particular felony, it must prove that at the time of the entry 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).

To prove the fourth element, the Commonwealth must prove that

a person lawfully in the (building) (ship) (vessel) (vehicle) was put in

fear. The Commonwealth is not required to prove that the defendant

specifically intended to put anyone in fear.

If the Commonwealth has proved all four 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. Judicial notice of time of sunset or sunrise. The law permits me to take

notice of certain facts that are not subject to reasonable dispute. In

this case, based upon [reference book] , I have decided to accept as

proved the fact that on [date] the sun (set) (rose) at [time] .

Therefore, you may accept this fact as true, even if no evidence has

been introduced about it. You are not required to do so, but you may.

See the notes to the supplemental instruction on “Judicial Notice” in Instruction 2.220 (What Is

Evidence; Stipulations; Judicial Notice).

3. 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).