T.P.I. -- CRIM. 14.02

AGGRAVATED BURGLARY

Any person who commits the offense of aggravated burglary is guilty of a crime.

For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1

[Part A:

(1)  that the defendant entered a habitation (or any portion thereof);

and

(2)  that the defendant entered with the intent to commit [__________

       ___________, a felony] [a theft] [an assault];

       [Include here the elements of the alleged crime(s).]

and

(3)  that the defendant acted without the effective consent of the owner;

and

(4)  that the defendant acted either intentionally, knowingly, or recklessly.]2            [See footnote 2 below.]

or

[Part B:

(1)  that the defendant remained concealed in a habitation;

and

(2)  that the defendant so acted with intent to commit [______________


______________, a felony] [a theft] [an assault];

       [Include here the elements of the alleged crime(s).]

and

(3)  that the defendant acted without the effective consent of the owner;

and

(4)  that the defendant acted either intentionally, knowingly, or recklessly.]3             [See footnote 2 below.]

or

[Part C:

(1)  that the defendant entered a habitation;

and

(2)  that the defendant committed or attempted to commit [___________

       ________________, a felony] [a theft] [an assault];

       [Include here the elements of the alleged crime(s).]

and

(3)  that the defendant acted without the effective consent of the owner;

and

(4)  that the defendant acted either intentionally, knowingly, or recklessly.]4             [See footnote 2 below.]


[To satisfy the element of intent to commit an assault, the state must have proven beyond a reasonable doubt that at the time the [entry] [remaining concealed] was committed the defendant intended to either cause bodily injury to another, cause another to be in reasonable fear of imminent bodily injury, or cause physical contact with another that a reasonable person would regard as extremely offensive or provocative.5  "Bodily injury" includes a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ or mental faculty.6]

"Habitation":

(1)  means any structure designed or adapted for the overnight

       accommodation of persons, including buildings, module units, mobile

       homes, trailers and tents;

and

(2)  includes a self-propelled vehicle that is designed or adapted for the

       overnight accommodation of persons and is actually occupied at the

       time of initial entry by the defendant;

and

(3)  includes each separately secured or occupied portion of the structure

       or vehicle and each structure appurtenant to or connected with the

       structure or vehicle.7

"Occupied" means the condition of the lawful physical presence of any person at any time while the defendant is within the habitation or other building.8


"Owner" means a person in lawful possession of property, whether the possession is actual or constructive. [This does not include a person, who is restrained from the property or habitation by a valid court order or order of protection other than an ex parte order of protection, obtained by the person maintaining residence on the property.] [The exception provided in the previous sentence only applies to offenses committed on or after July 1, 2000.] 9

"Enter" means an intrusion of any part of the body; or an intrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise.10

"Effective consent" means assent in fact, whether express or apparent, including assent by one legally authorized to act for another.  Consent is not effective when:

(A)  induced by deception or coercion; or

(B)  given by a person the defendant knows is not authorized to act as an

        agent; or

(C)  given by a person who, by reason of youth, mental disease or defect,

        or intoxication, is known by the defendant to be unable to make

        reasonable decisions regarding the subject matter; or

(D)  given solely to detect the commission of an offense.11

"Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.12


           "Knowingly" means that a person acts knowingly with respect to the conduct or to the circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.13

           "Recklessly" means that a person acts recklessly with respect to circumstances surrounding the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.14

FOOTNOTES

  1.  Tenn. Code Ann. ' 39-14-403(a).

  2.  Tenn. Code Ann. ' 39-11-302(b) and (c) and accompanying Sentencing

       Commission Comment.  The Committee is of the opinion that the definitions

       of "knowingly" and "recklessly", although statutorily required, are in conflict

       with the elements of the offense.  Because the elements of this offense

       include entering with "intent", some trial judges believe that only "intent"

       should be charged for this offense.  However, if Part C is charged, the

       element of entering with "intent" is not required, and there is no conflict with

       the definitions of "knowingly" and "recklessly".

  3.  Id.

  4.  Id.

  5.  Tenn. Code Ann. ' 39-13-101.  The element of assault was added as an

       additional element by the General Assembly for burglaries occurring after

       June 30, 1995.  If Part C is charged, no intent is required to be proved and

       so this section should not be charged.  However, if an assault is alleged, the

       definitions of assault and bodily injury should be charged instead. 

  6.  Tenn. Code Ann. ' 39-11-106(a)(2).

  7.  Tenn. Code Ann. ' 39-14-401(1).


  8.  Tenn. Code Ann. ' 39-14-401(2).

  9.  Tenn. Code Ann. ' 39-14-401(3).

10.  Tenn. Code Ann. ' 39-14-402(b).

11.  Tenn. Code Ann. ' 39-11-106(a)(9).

12.  Tenn. Code Ann. ' 39-11-106(a)(18).

13.  Tenn. Code Ann. ' 39-11-106(a)(20).

14.  Tenn. Code Ann. ' 39-11-106(a)(31).

COMMENTS

1.  Aggravated burglary is a Class C felony.  Tenn. Code Ann. ' 39-14-403(b).

2.  The trial judge should utilize, where relevant, T.P.I. -- CRIM. 11.01 (Theft) and T.P.I. -- CRIM. 4.01 (Attempt).

3.  If the definition of an offense within Title 39 does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state.  Tenn. Code Ann. ' 39-11-301(c).  Therefore, the Committee is of the opinion that the definitions of "intentionally", "knowingly", and "recklessly" are statutorily required and should be charged for this offense.  See also  footnote 2 above.