Instruction 8.112, Criminal Model Jury Instructions for Use in the District Court

BREAKING INTO, BURNING, INJURING, OR DESTROYING

A SAFE, VAULT, OR OTHER DEPOSITORY

WITH INTENT TO COMMIT A LARCENY OR FELONY

G.L. c. 266, § 16 – Part II

The defendant is charged with (breaking) (burning) (blowing up)

(injuring) (destroying) a (safe) (vault) (depository of money, bonds, or

other valuables) with intent to commit a (larceny) (felony). To prove

the defendant guilty of this offense, the Commonwealth must prove

two things beyond a reasonable doubt:

First: That the defendant (broke into) (burned) (blew up) (injured)

(destroyed) someone else’s (safe) (vault) (depository of money,

bonds, or other valuables) and;

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

(larceny) (felony).

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant (broke into) (burned)

(blew up) (injured) (destroyed) someone else’s (safe) (vault)

(depository of money, bonds, or other valuables).

Breaking

To prove the defendant broke into a (safe) (vault) (depository of

money, bonds, or other valuables), 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 it. Breaking includes moving in a significant manner anything

that bars the way into the (safe) (vault) (depository).

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 Ct. 1101 (unpublished) (leaning torso and arms through car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).

The below are common definitions for explanatory purposes, depending on the facts alleged.

Burning

To prove the defendant burned a (safe) (vault) (depository of

money, bonds, or other valuables), the Commonwealth must prove

beyond a reasonable doubt that the defendant burned it with a flame

or heat.

Blowing Up

To prove the defendant blew up a (safe) (vault) (depository of

money, bonds, or other valuables), the Commonwealth must prove

beyond a reasonable doubt the defendant damaged it with an

explosion.

Injuring

To prove that the defendant injured a (safe) (vault) (depository of

money, bonds, or other valuables), the Commonwealth must prove

beyond a reasonable doubt that the defendant damaged it either in

appearance or functionality.

Destroying

To prove that the defendant destroyed a (safe) (vault)

(depository of money, bonds, or other valuables), the Commonwealth

must prove beyond a reasonable doubt that the defendant destroyed

it so that it was no longer capable of being used for its intended

purpose.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that at the time the defendant (broke into)

(burned) (blew up) (injured) (destroyed) the (safe) (vault) (depository

for money, bonds, or other valuables), the defendant had the specific

intent to commit a (larceny) (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 of the break have

intended to commit a (larceny) (felony).

Larceny

Larceny is the taking of property of another with the intent at the

time of the taking to permanently deprive the owner of that property.

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 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 both elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more 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).