NOTE 1: Use this instruction only for burglary offenses involving the intent to commit the offenses punishable under Articles 118 - 120, 120b-121, 122, 125-128a, or 130. Where the intent is to commit any other offense, use instruction 3A-79-2.
NOTE 2: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: DD, TF, 10 years, E-1. (Category 3)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, unlawfully break and enter the (building) (structure) of __________, to wit: ___________, with intent to commit an offense under the Uniform Code of Military Justice therein, to wit: ______________.
c. ELEMENTS:
(1) That (state the time and place alleged), the accused unlawfully broke and entered the building or structure of (state the person alleged), to wit: (state the building/structure alleged); and
(2) That the breaking and entering were done with the intent to commit (state the offense alleged), an offense punishable under the Uniform Code of Military Justice.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
A “breaking” may be actual or constructive. Merely entering through a hole left in the wall or roof, or through an open window or door, will not constitute a breaking. But if a person moves any obstruction to entry of the house, without which movement the person could not have entered, the person has committed a “breaking.” Opening a closed door or window or other similar fixture, opening wider a door or window already partly open but insufficient for the entry, or cutting out the glass of a window or the netting of a screen is a sufficient breaking. The breaking of an inner door by one who has entered the house without breaking, or by a person lawfully within the house who has no authority to enter the particular room, is a sufficient breaking, but unless such a breaking is followed by an entry into the particular room with the requisite intent, burglary is not committed. There is a constructive breaking when the entry is gained by a trick, such as concealing oneself in a box; under false pretense, such as impersonating a gas or telephone inspector; by intimidating the occupants through violence or threats into opening the door; through collusion with a confederate, an occupant of the house; or by descending a chimney, even if only a partial descent is made and no room is entered.
An “entry” must be effected before the offense is complete, but the entry of any part of the body, even a finger, is sufficient. Insertion into the house of any tool or other instrument is also a sufficient entry, unless the insertion is solely to facilitate the breaking or entry.
An entry is “unlawful” if it is made without the consent of any person authorized to consent to entry or without other lawful authority.
(A “building” includes a room, shop, store, office, or apartment in a building.)
(“Structure” refers to only those structures which are in the nature of a building or dwelling. Examples include: A stateroom, hold, or other compartment of a vessel; an inhabitable trailer; an enclosed truck or freight car; a tent; a houseboat.)
It is not necessary that the building or structure be in use at the time of entry.
NOTE 3: In the case of semi-private structures, e.g., barracks or tents, the following instruction should be added to the definition of “unlawful” (above). It is based on US v. Davis, 56 MJ 299 (CAAF 2002) citing US v. Williams, 15 CMR 241 (CMA 1954).
Whether the accused’s entry was “unlawful” is a fact for you to decide based on all of the evidence in this case. In determining whether the entry was unlawful you should consider all the relevant facts and circumstances, including, but not limited to: (the nature and function of the building involved) (the character, status, and duties of the accused) (the conditions of the entry, including time, method, and the accused’s ostensible purpose, if any) (the presence or absence of a directive seeking to limit or regulate free ingress) (the presence or absence of an explicit invitation to the accused) (the invitational authority of any purported host) (the presence or absence of a prior course of dealing, if any, by the accused with the structure or its inmates, and its nature); (and) (whether the accused intended to commit a criminal offense inside the building).
NOTE 4: Elements of the offense intended. The following instruction, listing the elements and necessary definitions of the offense intended, must be given. If murder was the intended offense, the military judge must instruct as to the elements of murder committed with the intent to kill.
Proof that the accused actually committed or even attempted the offense of (state the offense allegedly intended) is not required, but you must be convinced beyond a reasonable doubt that the accused intended each element of that offense at the time of the unlawful breaking and entering. These elements are: (list here the elements of the allegedly intended offense).
NOTE 5: Other instructions. Instruction 7-3, Circumstantial Evidence (Intent), is ordinarily applicable. Instruction 6-5, Partial Mental Responsibility, Instruction 5-15, Evidence Negating Mens Rea, and Instruction 5-21, Voluntary Intoxication, as bearing on the issues of the specific intent to commit the allegedly intended offense, may be applicable.