Cooper v. People, No. 97SC662

Docket NºNo. 97SC662
Citation973 P.2d 1234
Case DateJanuary 11, 1999
CourtSupreme Court of Colorado

Page 1234

973 P.2d 1234
1999 CJ C.A.R. 138
Samuel W. COOPER, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent.
No. 97SC662.
Supreme Court of Colorado,
En Banc.
Jan. 11, 1999.
As Modified on Denial of Rehearing
Feb. 22, 1999. *

Page 1236

David F. Vela, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Kim L. Montragriff, Assistant Attorney General, John J. Krause, Assistant Attorney General, Criminal Enforcement Section, Denver, Colorado, Attorneys for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

Defendant, Samuel W. Cooper, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of second degree burglary under section 18-4-203, 6 C.R.S. (1998). The statute defines the offense of second degree burglary as an unlawful entry or unlawful presence in an occupied building coupled with the intent to commit some other crime on the premises (the "ulterior offense"). We granted certiorari to consider whether the trial court erred in instructing the jury that it could convict Cooper if it found that he had formed the intent to commit the underlying offense after his unlawful entry into the premises in question. The court of appeals found no error. See People v. Cooper, 950 P.2d 620 (Colo.App.1997).

We now hold that, under section 18-4-203 and our precedent, burglary punishes the defendant who trespasses with the intent to do more harm once on the premises. Thus, to convict a defendant of burglary, a jury must conclude that the defendant had made up his mind to commit some other offense at the point at which he or she becomes a trespasser. If the defendant forms the intent to commit the crime after the trespass is under way, he or she may be guilty of that underlying crime (or attempt) and of trespass - but is not guilty of burglary. Both circumstances reflect criminal acts, but burglary is the more serious. Burglary is the crime that requires that the defendant have a criminal intent to do more than trespass. To hold otherwise would convert burglary into a sentence enhancer for any crime committed in tandem with a trespass. Although the General Assembly could so provide, we find no indication in the statute or legislative history to indicate that such was their intent. Hence, we reverse the decision of the court of appeals.

I.

In February 1995, Cooper and his seven-year-old daughter were living with Cooper's sixty-eight-year-old mother, Shirley Thorman. Cooper had borrowed money from his mother, and the two argued frequently about financial matters. On February 26, 1995, following one such argument, the police arrested Cooper for harassment of his mother. Two days later, the police released Cooper from custody subject to a temporary restraining order that prohibited him from contacting his mother or going to her home.

The following day, on March 1, 1995, defendant went to Thorman's home and entered through the rear door. Thorman and Cooper gave conflicting testimony at trial concerning the nature of this visit. Thorman testified that her son broke in uninvited and unannounced, immediately cursed her and threatened her life, and then threw her onto a bed and repeatedly "twisted" her legs and arms. She further testified that her son beat her over the head with two decorator pillows until they began to tear. Cooper testified that his mother had invited him to the house, and that he broke through the door in order to escape the cold when his mother failed to answer his knocks. He further testified that upon his entry, he argued with Thorman about financial matters. He admitted that he became angry in the course of this discussion, and pulled a light fixture out of the ceiling, but claimed that he never physically contacted his mother. Hence, the evidence was unclear as to whether Cooper had formed an intent to commit the ulterior offense

Page 1237

of assaulting his mother when he entered her home.

The trial court instructed the jury that it could find Cooper guilty of second degree burglary if it found that Cooper knowingly and unlawfully entered the home with the intent to commit therein the crime of assault. Over defense objection, the trial court further instructed that "the intent to so commit a crime ... can be formed either before entry into the dwelling or after entry into the dwelling." The jury convicted Cooper of second degree burglary and assault on the elderly, and Cooper appealed, arguing that the burglary instructions were improper.

II.

The second degree burglary statute, section 18-4-203(1), 6 C.R.S. (1998) provides: "A person commits second degree burglary if he knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against person or property." 1 The General Assembly inserted the language "remains unlawfully" when it repealed and reenacted the statute in 1971. See Ch. 121, sec. 1, § 4-4-203, 1971 Colo. Sess. Laws 427. Cooper argued on appeal that because the trial court never instructed the jury that the defendant could be convicted under the unlawfully remains theory, it was improper for that court to instruct that his intent to assault Thorman could be formed after his entry. In overruling Cooper's similar objection at trial, the trial court indicated that there seemed to be "no evidence to suggest that Mr. Cooper lawfully entered, and was asked to leave, and remained unlawfully." 2 On that basis, the trial court declined to include the remaining unlawfully instruction, but nonetheless did include the instruction concerning the timing of the formation of intent.

Citing People v. Angell, 917 P.2d 312 (Colo.App.1995), and People v. Trujillo, 749 P.2d 441 (Colo.App.1987), the court of appeals concluded that the 1971 amendment supported the trial court's jury instruction. The court of appeals in Angell and Trujillo held that "a person can be found guilty of second degree burglary if the intent to commit a further crime is formed after entry, but while the person is remaining unlawfully upon the premises." Trujillo, 749 P.2d at 442; see also Angell, 917 P.2d at 314. Based on these holdings, the court of appeals found no error in the trial court's jury instructions.

III.

We begin our analysis of this case by exploring the origins of our modern burglary statute. Under the common law, burglary required the convergence of four elements: time, place, manner, and intent. 4 William Blackstone, Commentaries 283 (Hammond ed. 1890). The law punished "he that by night breaketh and entereth into a mansion-house, with intent to commit a felony." Id.

This formulation of burglary responded to two deficiencies in the early law of attempt. First, under the common law, attempt required a person to engage in a final act that would have accomplished the crime but for circumstances beyond that person's control. See Model Penal Code § 221.1, cmt. at 63 (1980). The development of burglary allowed the law to intercede in a prospective felon's conduct at an earlier point in time, combating what was viewed to be "a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of [the] right of habitation." 4 Blackstone, Commentaries 282. Second, attempt afforded disproportionately light penalties in comparison to those for the completed offense. Thus, the offense of burglary evolved to provide more severe punishment for a particularly

Page 1238

terrifying form of inchoate offense. See Model Penal Code 221.1, cmt. at 63; 4 Blackstone, supra, at 281.

Hence, the specific purpose of burglary was to deter trespass against habitations by persons who intended to commit a felony therein. Trespass into a home coupled with the intent to steal from or assault the resident was viewed as egregious and dangerous. However, unless a person possessed the intent to commit a felony at the moment he broke and entered a dwelling, such a trespass was punishable only as mere civil trespass:

Under the common law and by virtue of statutory provisions in many jurisdictions, a criminal intent to steal or commit some felony ... at the time of breaking and entering is an essential element of the crime of burglary. The breaking and entry would, in the absence of such intent, be a bare trespass, which, however aggravated, would not be a crime.

13 Am.Jur.2d Burglary § 24 (1964); see also 4 Blackstone, supra, at 288 ("As to the intent; it is clear that such breaking and entry must be with a felonious intent, otherwise it is only a trespass.").

Modern burglary statutes have expanded the offense to cover a broader range of situations in which people might be terrorized by trespassers with criminal designs. Unlike the common law, Colorado statutes have never limited burglary trespasses to those committed against a dwelling. From 1861 until 1971, burglary included trespasses against an enumerated list of structures, such as churches, saloons, and railroad cars. See Territorial Laws of Colorado, First Sess., An Act Concerning Criminal Jurisprudence, Division V, § 54, at 299 (1861) (codified as amended through 1971 at § 40-3-5, 3 C.R.S. (1963)). In 1971, the General Assembly broadened the offense to include entries into any "building or occupied structure." See § 40-4-202 to -204, 12 C.R.S. (1971 Supp.).

As to the manner of trespass, our statute has always encompassed unlawful entry achieved in either of two manners: (1) a traditional common law breaking and entry or; (2) an unlawful, nonforced entry. See, e.g., Colo.Crim.Code, Ch. 36, § 1227 (1891) (codified as amended at 18-4-201 to -204, 6 C.R.S. (1998).

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57 practice notes
  • Hill v. Thomas, No. 97SC630
    • United States
    • Colorado Supreme Court of Colorado
    • February 16, 1999
    ...whomever they wish and they will not violate the statute, so long as the mens rea and actus reus do not coincide. See Cooper v. People, 973 P.2d 1234, 1240-1241 (Colo.1999). Therefore, any risk of an inadvertent violation involving an "innocent" passer-by is, at most, de Admittedly, under t......
  • United States v. Herrold, No. 14-11317
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 20, 2018
    ...interpretation of "remaining in" language in their respective statutes after Taylor was decided. Compare, e.g. , Cooper v. People , 973 P.2d 1234, 1241 (Colo. 1999) (en banc) ("Consistent with the New York court’s reading of its [remaining in] statute, we read the plain language of the Colo......
  • United States v. Bernel-Aveja, No. 15-20308
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 2016
    ...proof that the defendant intended to commit a crime inside at the moment he first became a trespasser") (citing Cooper v. People , 973 P.2d 1234, 1241 (Colo. 1999) ); id. ("We agree with other divisions of this court that the 1999 amendments legislatively overruled Cooper with respect to th......
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...concluded that at the moment of breaking the entrance, she intended to remove only her own property. We disagree. In Cooper v. People, 973 P.2d 1234 (Colo.1999), the court noted that intent must be examined at the moment of unlawful entry. However, defendant's argument ignores her reference......
  • Request a trial to view additional results
57 cases
  • Hill v. Thomas, No. 97SC630
    • United States
    • Colorado Supreme Court of Colorado
    • February 16, 1999
    ...whomever they wish and they will not violate the statute, so long as the mens rea and actus reus do not coincide. See Cooper v. People, 973 P.2d 1234, 1240-1241 (Colo.1999). Therefore, any risk of an inadvertent violation involving an "innocent" passer-by is, at most, de Admittedly, under t......
  • United States v. Herrold, No. 14-11317
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 20, 2018
    ...interpretation of "remaining in" language in their respective statutes after Taylor was decided. Compare, e.g. , Cooper v. People , 973 P.2d 1234, 1241 (Colo. 1999) (en banc) ("Consistent with the New York court’s reading of its [remaining in] statute, we read the plain language of the Colo......
  • United States v. Bernel-Aveja, No. 15-20308
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 2016
    ...proof that the defendant intended to commit a crime inside at the moment he first became a trespasser") (citing Cooper v. People , 973 P.2d 1234, 1241 (Colo. 1999) ); id. ("We agree with other divisions of this court that the 1999 amendments legislatively overruled Cooper with respect to th......
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 26, 2002
    ...concluded that at the moment of breaking the entrance, she intended to remove only her own property. We disagree. In Cooper v. People, 973 P.2d 1234 (Colo.1999), the court noted that intent must be examined at the moment of unlawful entry. However, defendant's argument ignores her reference......
  • Request a trial to view additional results

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