PART II. BURGLARY AND OTHER OFFENSES OF INTRUSION

 

708-810 Burglary in the first degree. (1) A person commits the offense of burglary in the first degree if the person intentionally enters or remains unlawfully in a building, with intent to commit therein a crime against a person or against property rights, and:

(a) The person is armed with a dangerous instrument in the course of committing the offense;

(b) The person intentionally, knowingly, or recklessly inflicts or attempts to inflict bodily injury on anyone in the course of committing the offense; or

(c) The person recklessly disregards a risk that the building is the dwelling of another, and the building is such a dwelling.

(2) An act occurs "in the course of committing the offense" if it occurs in effecting entry or while in the building or in immediate flight therefrom.

(3) Burglary in the first degree is a class B felony. [L 1972, c 9, pt of 1; gen ch 1993]

 

Revision Note

 

In subsection (1)(a), "or" deleted pursuant to 23G-15.

 

Case Notes

 

No merit to defendant's arguments regarding defendant's sentence, where defendant contended, inter alia, that repeat offender statute did not apply to defendant's offense, where defendant was convicted of burglary in first degree of a dwelling in violation of subsection (1)(c). 105 F.3d 463 (1997).

Accomplice. 58 H. 404, 570 P.2d 844 (1977).

Although there was no direct evidence that appellant did not have permission to enter residence, a reasonable mind could infer that appellant did not have permission. 78 H. 383, 894 P.2d 80 (1995).

First degree burglary not an included offense of first degree robbery. 81 H. 309, 916 P.2d 1210 (1996).

A perpetrator "remains unlawfully" for the purposes of a burglary prosecution only in situations where the individual makes an initial lawful entry, that subsequently becomes unlawful. 89 H. 284, 972 P.2d 287 (1998).

Because the broad language of this section does not evidence an intent to confine crimes "against a person" to those enumerated in chapter 707, and harassment under 711-1106 is a crime against a person, burglary conviction under this section may be predicated on offense of harassment. 89 H. 284, 972 P.2d 287 (1998).

In order to sustain a burglary conviction under this section, the evidence must show that the unlawful entry was effected for the purpose of committing an offense against a person or property rights; the intent to commit the offense must have existed at the time the unlawful entry was made. 89 H. 284, 972 P.2d 287 (1998).

Where trial court failed to correct prosecution's erroneous interpretation of "remains unlawfully" under this section, defendant's constitutional rights to due process and a unanimous jury verdict violated. 89 H. 284, 972 P.2d 287 (1998).

Theft in the second degree is not a lesser included offense of burglary in the first degree. 2 H. App. 579, 637 P.2d 780 (1981).

Conviction of first degree burglary affirmed where defendant intentionally entered a separately secured bedroom and bath area of nightclub. 9 H. App. 307, 837 P.2d 1308 (1992).

Conviction affirmed, where defendant argued that court erred in denying defendant's motion for judgment of acquittal on burglary in first degree count on ground that, since tent defendant was charged with having entered was not a building, it was not a dwelling within definition of this section. 9 H. App. 368, 842 P.2d 267 (1992).

Prosecution satisfied its burden of proving that storage shed was in a garage that was part of a building that was a dwelling. 86 H. 143 (App.), 948 P.2d 564 (1997).

As robbery in the first degree under 708-840(1)(b)(ii) does not include the element required under subsection (1)(c) for burglary in the first degree of intentionally entering or remaining unlawfully in a building, it was possible for defendant to commit robbery in the first degree without committing burglary in the first degree; thus the crimes are not included in each other and do not merge. 109 H. 327 (App.), 126 P.3d 370 (2005).

 

 

Previous Vol14_Ch0701-0853 Next