708-811 Burglary in the second degree. (1) A person commits the offense of burglary in the second 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.

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


Case Notes


Evidence adequate to support conviction. 64 H. 226, 638 P.2d 330 (1981).


COMMENTARY ON 708-810 AND 708-811


It has been said that the essence of the offense of burglary is "invasion of premises under circumstances specially likely to terrorize occupants."[1] Alternatively, it has been proposed that the primary function of burglary statutes is to crystallize the doctrine of attempt in situations of criminal trespass.[2] The former view implies that the offense is conceived of, in part, although not necessarily defined in terms of a harm to personal dignity and sense of safety. With respect to the second view, the need to crystallize the doctrine of attempt in cases involving criminal trespass is largely obviated by this Code's clear treatment of the doctrine of attempt.[3] However, despite the absence of clearly articulated substantive reasons for making burglary a separate offense, the Code defers to the overwhelming body of decisional and statutory law recognizing this crime.[4] In the words of the Model Penal Code commentary,

If we were writing on a clean slate, the best solution might be to eliminate burglary as a distinct offense. ... But we are not writing on a clean slate. Centuries of history and a deeply embedded Anglo-American conception like burglary cannot easily be discarded. The needed reform must therefore take the direction of narrowing the offense to something like the distinctive situation for which it was originally devised: invasion of premises under circumstances specially likely to terrorize occupants.[5]

The Code rejects the division of burglary into three degrees of offense,[6] and follows the Model Penal Code approach of dividing the offense into two degrees and treating the generally recognized aggravating circumstances as of roughly equal significance.[7] Thus, either (a) possessing a dangerous instrument, or (b) inflicting or attempting to inflict bodily injury, or (c) recklessly disregarding the risk that the building is a dwelling is sufficient to aggravate the class C offense and make it a class B offense.

Previously, Hawaii law defined burglary as the entry of a building or other structure of various descriptions, with intent to commit larceny of the first or second degree or to commit any felony.[8] If the conduct occurred at night, with the possession of a deadly weapon, or in a legally-occupied building or structure, the offense was burglary in the first degree.[9] All other burglary was burglary in the second degree.[10]

The previous Hawaii definitions were similar to those adopted by this Code. The Code covers both "entering and remaining unlawfully" upon premises; and the definition of this phrase is provided by 708-800. The Code alters the circumstances that aggravate the offense and make it burglary in the first degree. Committing the offense while armed with a dangerous instrument remains an aggravating circumstance. The Code, however, gives no significance to the time of the occurrence of the event. Unlike prior law, the Code makes it an aggravating circumstance to inflict or attempt to inflict bodily injury during the course of the offense. Rather than have the degree of the offense turn on the fortuitous circumstance of whether the structure happened to be occupied, the Code makes it an aggravating circumstance if the structure is a dwelling and the defendant is culpable in this regard.

Another substantive change is the reduction of penalty. It is felt that this reduction reflects the desire to treat different offenses separately. To the extent that actual harm or theft do occur, they may be dealt with under appropriate sections of the Code: where they are absent, it is felt that the prior law's provisions for a possible twenty-year sentence[11] was too severe for an offense which may involve no major injury other than unpermitted entry.



708-810 And 708-811 Commentary:


1. M.P.C., Tentative Draft No. 11, comments at 57 (1960).


2. Prop. Mich. Rev. Cr. Code, comments at 200; cf. commentary on 708-813 and 814, this Code.


3. Cf. 705-500 through 502, and commentary thereon. However, it must be noted that simultaneous convictions for criminal trespass and attempt of another offense would yield concurrent rather than consecutive sentences, and, in most cases, not the kind of penalty commensurate with the view of burglary as a crystallization of the doctrine of attempt in aggravated cases. Still, one might argue that whatever special aggravation arises out of the conjunction of criminal trespass and criminal attempt (and it is difficult to find a rational articulation of this aggravation) ought to be dealt with individually, according to the actual and potential harms involved in each instance, rather than on a wholesale basis which ignores individual differences.


4. Both the Model Penal Code and the Proposed Michigan Revised Criminal Code adopt this approach; see M.P.C., Tentative Draft No. 11, comments at 57-58 (1960), and Prop. Mich. Rev. Cr. Code, comments at 200.


5. M.P.C., Tentative Draft No. 11, comments at 57 (1960).


6. See Prop. Mich. Rev. Cr. Code 210 to 212.


7. See M.P.C. 221.1.


8. H.R.S. 726-1.


9. Id. 726-3.


10. Id.


11. Id. 726-4.



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