Appeals Court (April 26, 2007)

A defendant who enters a vehicle through an open sunroof commits a "break" for the purposes of G.L. c. 266, §18.

The defendant was convicted on a joint venturer theory of breaking and entering into a motor vehicle. On appeal the defendant argues that the judge's denial of the motion for a required finding of not guilty was in error because no actual break occurred when his co-defendant entered the car through an open sunroof. The appeals court disagreed. Although the classic requirement of a breaking is proof of some physical act, however slight, to remove an obstacle to entry, Massachusetts recognizes the open window doctrine: entry through an opening not intended or ordinarily useable by means of entry is within the scope of the statute. Entering through an open sunroof constitutes a "break" for purposes of proving a breaking and entering under G.L. c. 266, §18.