Appeals Court (October 13, 2006)

Armed burglary includes a breaking and entering of a dwelling with intent to commit a felony and subsequent assault on a person lawfully therein even though that person arrived home after the break while the intruder was still present.

The defendant, who had an intermittent romantic relationship with the victim, entered the victim's home while she was away. When she returned home, the defendant beat her severely. The jury convicted him of armed burglary, among other crimes.

The defendant appealed, claiming that because the victim was not present when he entered her house, he could not be found guilty of armed burglary. The Appeals Court disagreed.

The relevant part of the armed burglary statute, G.L. c. 266, §14, provides:

Whoever breaks and enters a dwelling house in the night time, with the intent to commit a felony, or whoever, after having entered with such intent, breaks such dwelling house in the night time, any person being then lawfully therein, and the offender being armed with a dangerous weapon at the time of such breaking or entry, or so arming himself in such house, or making an actual assault on a person lawfully therein, shall be punished . . .

The Court held that the aggravation of the crime is based on the lawful presence of a person in the dwelling during the time the burglar is present, and it should not matter whether the occupant happens to arrive in the premises before or after the entry of the intruder. "It makes no sense to regard an assault by a burglar on someone in her home as less of an aggravation merely because the victim happened to arrive home during the course of the burglary, and the statute should not be interpreted to require that result."