OUJI-CR 5-12

BURGLARY IN THE FIRST DEGREE -- ELEMENTS

No person may be convicted of burglary in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, breaking;

Second, entering;

Third, a dwelling;

Fourth, of another;

Fifth, in which a human is present;

Sixth, with intent to commit some crime therein;

______________________________

Statutory Authority: 21 O.S. 2021, § 1431.

Committee Comments

The statutory definition of burglary in the first degree in 21 O.S. 2021, § 1431 includes three alternative modes for breaking: "forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window[,] or the locks or bolts of such door, or the fastening of such window or shutter"; "breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present"; or "unlocking an outer door by means of false keys or by picking the lock thereof.". Nevertheless, the Oklahoma Court of Criminal Appeals has ruled that these modes do not need to be included in the jury instruction defining the elements of burglary. Cleary v. State, 1997 OK CR 35, ¶ 27, 942 P.2d 736, 745 (overruling Hendricks v. State, 1985 OK CR 39, 698 P.2d 477). However, the Court of Criminal Appeals subsequently ruled that the question of whether a particular door is an outer door "cannot be made by a bright line rule," but rather is a fact-intensive inquiry. State v. Busby, 2022 OK CR 4, ¶ 11, 505 P.3d 932, 935. If there is a factual question about whether a door that the defendant entered is an outer door, then the jury should be instructed on the relevant mode of breaking.

(2024 Supp.)