Appeals Court, June 8, 2012

A conviction for breaking and entering a residence during the daytime with the intent to commit a felony, pursuant to G.L. c. 266, § 17, does not require proof that the defendant intended to cause fear to the occupant but only the result that the occupant was in fact intimidated.

A Superior Court jury found the defendant guilty of one count of breaking and entering a residence during the daytime with the intent to commit a felony and with the resulting infliction of fear upon the lawful occupant, pursuant to G.L. c. 266, § 17.  On appeal, the defendant contended that the prosecution failed to prove beyond a reasonable doubt that he intended to put in fear any occupant of the house.  

In order to prove breaking and entering a residence during the daytime with the intent to commit a felony, G.L. c. 266, § 17, the Commonwealth must prove four elements:

“First, that the defendant broke into a building belonging to another person. Second, that the defendant entered the building. Third, that the defendant did so with the intent to commit a felony in that building. And, fourth, that the owner or other person lawfully in the building was put in fear."

The Court rejected the defendant’s suggested fifth element, requiring proof that the defendant intended to cause fear to the occupants, based on the text and authority for the statute.  First, the Legislature could have readily written into the statute an element requiring proof of the defendant’s intent to cause fear, but it did not.  Second, Courts “will generally construe statutes so as not to derogate from common law doctrine upon the same subject matter.”  Therefore, the Court considered the common law offense that most closely resembles G.L. c. 266 § 17, burglary, and found the only intent required is the intent to commit a crime. 

The Court held “as a matter of statutory construction, the intent to place an occupant of a building in fear is not a prima facie element of the offense.”