Have you or your loved one been charged with the above-reference offense? If so, call Attorney Scambio for a free consultation at 508-796-5737.
The Massachusetts Legislature defines Breaking and entering in the daytime, with intent to commit a felony, the owner or any other person lawfully present therein being put in fear, under Massachusetts General Law Chapter 266, § 17 as follows:
Section 17. Whoever, in the night time, enters without breaking, or breaks and enters in the day time, a building, ship, vessel, or vehicle, with intent to commit a felony, the owner or any other person lawfully therein being put in fear, shall be punished by imprisonment in the state prison for not more than ten years. Whoever commits any offense described in this section while armed with a firearm, rifle, shotgun, machine gun or assault weapon shall be punished by imprisonment in the state prison for not less than 7 years or in the house of correction for not less than 2 years nor more than 21/2 years.
The model jury instructions requires the Commonwealth to prove the following in order for the Commonwealth to prove each element of the offense. The Commonwealth must prove each of the following elements beyond a reasonable doubt at trial:
To convict a defendant of this offense, the Commonwealth must prove each of the following elements beyond a reasonable doubt.
First: That the defendant broke into a dwelling belonging to another person.
Second: That the defendant entered that dwelling.
Third: That the defendant did so with the intent to commit a felony in the dwelling.
Fourth: That the defendant put the owner or other lawful occupant of the dwelling in fear; and
Fifth: That this event took place in the daytime.
I will now further define each of these elements to you.
The first element that the Commonwealth must prove beyond a reasonable doubt is that the defendant under consideration broke into a dwelling belonging to another person. “Breaking” has been defined as exerting physical force, even slight physical force, and thereby removing an obstruction and gaining entry. Another definition is moving, in any significant manner, anything that bars the way into a building. Some obvious examples would include breaking a window, or forcing open a door or window, or removing a plank from a wall. But there are some less obvious examples that are also considered to be “breaking”. Opening a closed door or window is a breaking, even if it is unlocked. Going through an open window that is not intended for use as an entrance is also a breaking, but going in through an unobstructed entrance – – such as an open door – – is not. Even forcing aside window blinds constitutes a breaking. This element of the offense consists of violating the common security of a dwelling house.
The Commonwealth must also prove beyond a reasonable doubt that the premises were not the dwelling house of the defendant. To prove this, the Commonwealth must show that the premises were presently a place for the living and habitation of persons. The Commonwealth must prove beyond a reasonable doubt that the defendant had no right of habitation or occupancy in the dwelling at the time of entry.
The second element that the Commonwealth must prove beyond a reasonable doubt is that the defendant in fact entered the building. “Entry” is the unlawful making of one’s way into a building. It is sufficient if any part of the defendant’s body – – even a hand or a foot – – [or any instrument or weapon controlled by the defendant] – – physically enters the building. The entry must also be unlawful; that is, the Commonwealth must prove beyond a reasonable doubt that the defendant did not have the consent of the occupant to enter the building.
The third element that the Commonwealth must prove beyond a reasonable doubt is that when the defendant entered the building, he specifically intended, after entry, to commit a felony. In this case, the Commonwealth contends that the defendant had the specific intent to commit the crime of Armed Robbery. I instruct you that the crime of Armed Robbery, which I will define for you shortly, is a felony under the laws of Massachusetts.
The law recognizes two kinds of intent, general intent and specific intent. In this indictment, the Commonwealth must show that the defendant had the specific intent to commit a felony as opposed to general intent. General intent is when we do things more or less unconsciously. It is an action, such as sitting down in a chair or walking up stairs. We would not take these actions unless we resolved to do them in our minds, but they do not require concentration or focusing of our minds.
Specific intent, which is required for this indictment, means that the defendant must have it in his mind to do a particular act. It involves concentrating or focusing the mind. An Act performed with specific intent is a conscious act, done with the determination of the mind to do the act. It is contemplation rather than reflex, and it must precede the act. An act is specifically intended if the mind focuses upon accomplishment of the act, even if the intent arose only an instant before the act.
Specific intent is a matter of fact that may or may not be proved by direct evidence. If it is not proved by direct evidence, then you, the jury, in your role as finders of fact, may or may not infer the element of specific intent from the defendant’s actions, words and conduct. You may consider all the surrounding facts and circumstances of this case and weigh them in the light of your common sense and good judgment, to determine whether the Commonwealth has persuaded you, beyond a reasonable doubt, to draw the inference that the defendant had the specific intent to commit the crime of Armed Robbery, in this case.
The fourth element that the Commonwealth must prove beyond a reasonable doubt is that the breaking and entering took place in the daytime. Daytime is defined as the period between one hour before sunrise on one day and one hour after sunset on that day.
The fifth element that the Commonwealth must prove beyond a reasonable doubt is that the defendant committed an actual assault upon a person lawfully in the dwelling. An assault may be committed in one of two ways. First, an assault is defined as an attempt or offer by one person to do bodily injury to another by force and violence.
Alternatively, an assault may consist of putting a person in fear of immediate bodily injury. The first type of assault consists of an offer or attempt to commit a battery. In this type of assault, the Commonwealth must prove beyond a reasonable doubt that the defendant intended to physically harm the Victim. The Commonwealth must also prove that the defendant did an act toward the commission of inflicting physical harm upon the Victim. In other words, the Commonwealth must show that the defendant did in fact attempt to do bodily harm the Victim.
Finally, the Commonwealth must prove that the defendant had the apparent ability to inflict bodily harm. This means that the Commonwealth need not show the defendant possessed the actual ability to do bodily harm, because apparent ability will suffice.
The Commonwealth does not have to show that the victim was apprehensive or fearful. Fear or apprehension on the part of a victim is not an essential ingredient of this first type of assault. The second type of assault occurs when the defendant, with the intent to cause apprehension of immediate bodily harm, does some act which causes such apprehension. First, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed the intention to cause apprehension of immediate bodily harm in the alleged victim. Second, the
Commonwealth must show that the defendant engaged in conduct of a sort which would raise a reasonable apprehension of bodily harm. For example, pointing an unloaded gun at a person may constitute assault. However, if the defendant merely utters threatening words to the alleged victim, unaccompanied by any act, such conduct generally is not sufficient to constitute assault.
Third, the prosecution must demonstrate that, because of the threatened conduct, the alleged victim did in fact experience a reasonable fear of immediate physical harm.
Finally, and like the first type of assault, the Commonwealth need not demonstrate that the defendant had the actual ability at the time of the alleged assault to carry out the threat, because his apparent ability to do so may suffice.
If you have been charged with this offense and need a trial attorney, or if you have any questions related to this criminal offense, call Attorney Scambio today at 508-796-5737. Remember, before you decide whether to make any statements to law enforcement, discuss that decision with a competent attorney. Attorney Scambio is available six (6) days a week and will take your call to discuss assisting you in your criminal matter.