Depends on what “actually present” means
Last year, in the wake of the Cheshire murders, the legislature got it into their heads that our current Burglary statutes weren’t sufficient to prosecute the act of a home invasion1. While not true, they felt there had to be some response to the murders and as a result, passed the home invasion statute.
There isn’t much difference between the Burglary statute and the “home invasion” statute. But let’s take it one step at a time. Here are the elements of the home invasion statute:
- A person
- Enters or remains unlawfully
- In a dwelling
- While a person other than a participant
- Is “actually present” in that dwelling
- The “offender” has the intent to commit a crime
- AND
- In the course of committing “the offense”
- either commits or attempts to commit a felony
- against “the person” of 4 & 5 above
- OR
- the “offender” is armed with explosives or a DW or a DI
- “course of committing” is either an act or attempt
- or in flight thereafter.
More, including a poll, after the jump.
Now that, when read as a sentence, may not seem to be a complicated statute, but after breaking it down into its elements, raises some questions:
- What does “actually present” mean and what are its limits?
- What is “the offense” referred to in element 8?
- And what of elements 9 and 10?
What of elements 9 & 10? Does an offense against “the person” literally mean an offense that involves the physical person of the homeowner? Does it limit it to things like kidnapping, assault, sex assault? Or would it even include a situation where there is no physical contact or attempted physical contact between the offender and the homeowner, say, a larceny? In other words, is it sufficient for the offender to enter a house where someone is present, take some valuables and leave, without ever threatening or even seeing the homeowner and still be convicted of home invasion?
If it is, then what is the difference between that factual scenario and what is a classic burglary?
Now, of the title of this post, “actually present”. On one hand, it is pretty self-explanatory. Actually present means just that. The person is actually present. Of course, if this were not the case, then elements 8-11 would be useless. But we know that law is not made when the facts fit squarely within the parameters of the statute. In order to test the statute, we must operate on the fringes.
So here are three scenarios. Use the poll to indicate which of the three (or any combination thereof) you would consider to be a home invasion with the elements of this statute:
Scenario A: The offender has completed the larceny of an empty dwelling and is exiting through the front door, just as the homeowner is walking up the driveway to the front door. Their “meeting” is outside the four walls of the home, but on the property. There is no physical contact, as the offender simply runs away.
Scenario B: Exactly the same as the above, but there is a brief scuffle between the two.
Scenario C: The offender is walking out the back door of the house and is seen by the homeowner who walks in the front door.
Scenario D: The offender, seeing the homeowner opening the front door, leaves via the back door. The offender is not seen by the homeowner.
Scenario E: The offender leaves through one door, while the homeowner walks in another. Neither sees the other.
All of those may qualify as “home invasion” or none of them may. It all depends on how elements 8, 9, 10 & 14 get along. The purpose of the home invasion statute, of course, is:
protection against invasion of premises likely to terrorize occupants
Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1971), p. 32. Oh wait. That’s the purpose of the burglary statute (State v. Greco, 216 Conn. 282, 296). Anyway, assume that it is the same for home invasion.
If the homeowner is not at home during the “invasion” but arrives during the exit, would that be likely to terrorize the occupant? I think the answer is yes. But what of the scenarios where the homeowner is unaware of the presence of the exiting offender? Perhaps, because there may not be a functional difference between that and the asleep homeowner who doesn’t know of the presence of the intruder.
Yes, I recognize that these scenarios are a bit fanciful, but that’s what Sundays are for. Have at it:
[poll id="28"]
1. The home invasion statute is nothing but a 5 year sentence enhancement for a burglary where a person is present.
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about 2 years ago
I would imagine that you’ve highlighted some of the many problems that will be fought about and litigated for years to come!
On the subject of what would constitute “a felony against the person”, perhaps we should look to the common law usage and definition. Our penal code still enumerates offenses against the person vs. other types of offenses. (See Section 53). Larceny, I believe, would be an offense against private property (as opposed to robbery, where force is used or threatened to be used). I think there’s a strong argument to be made that since the legislature used the familiar nomenclature “against the person” and did not indicate any intent to abrogate or deviate from the old definitions, then the old delineations apply.
As for your hypos, in any instance where the offender is acting alone and does not know that someone is actually present, then it’s not likely that the State will be able to prove that the offender intended to commit or attempted to commit a felony against that person. However, if that offender is armed with a deadly weapon or dangerous instrument, I don’t think it matters whether s/he knew another person was actually present or not, or whether s/he saw the other person or not.
What also strikes me as interesting about the statute is that it doesn’t protect only the residents, or inhabitants, of the dwelling. Rather, it covers ANY “person other than a participant in the crime.” That makes for some interesting hypotheticals, as well.
about 2 years ago
That’s a good point. I thought we still had those delineations, but the online version of the statutes doesn’t make that explicit. Which is why there’s a strong argument that if there is no physical contact, or attempt at physical contact, it should still be only a burglary (only!).
Good pickup on that last part: “person other than a participant”. Would this include the mailman who stumbles across the intruder, or the “unsuspecting” burglar who breaks into an erstwhile empty home only to discover the repairman toiling away at the refrigerator? I suspect it would.
about 2 years ago
I have trouble with Scenario B. One could argue that:
1. A dwelling, under C.G.S. 53a-100, is defined as a building. It is not the driveway, garden, or yard.
1a. To be guilty of home invasion under C.G.S. 53a-100aa “a person other than a participant in the crime is actually present in such dwelling”.
1b. The homeowner walking up the driveway in this case is not actually present in the dwelling. On the property, yes, but not yet in the building. Condition (5) is not met.
2. While leaving the dwelling in flight, the defendant is still “in the course of” committing a crime.
2a. That crime is burglary. The nexus between the defendant in the course of committing a crime, and the homeowner being assaulted, occurs outside the dwelling.
3. Simply assaulting the homeowner when he is walking up the driveway to the front door is not a felony, as a scuffle, not resulting in serious injury, is a Class A misdemeanor. Thus Condition (9) is not met.
Since condition (5) and (9) are not met, the defendant has not committed home invasion as I see it.