Massachusetts law defines burglary as breaking and entering into a dwelling at night time with the intent to commit a felony therein. These three parts of the definition are known as the “elements” of the crime of burglary. Massachusetts has retained the old common law definition of the crime; most states have done away with the "night time," felony-only, and "dwelling" requirements (though they may punish the offense more severely when these factors are present).
To be convicted of burglary, all three elements of the crime must be proved beyond a doubt (or admitted to by the defendant). That is, the prosecutor must prove that the defendant actually entered the building, that the entry occurred at night, and that the defendant entered with the intent to commit a felony in the dwelling. Without sufficient proof of each of the three elements, the prosecutor may secure a conviction for some other crime (such as trespass or attempted burglary), but not burglary.
The first element of the crime of burglary—entering—requires that you actually entered into a dwelling without permission to do so. A dwelling is any place used for overnight accommodation, including (for example), a house, apartment, motel room, or even a tent. And it also includes outbuildings on the premises of and used in connection with a main residence (such as a garage or barn).
Unlike other states, the unlawful entry must have occurred at night. Similar unlawful entry crimes that occur during the day might be classified as trespass, as discussed below.
The third element of burglary concerns the defendant’s state of mind at the time he or she entered the dwelling. To be convicted of burglary, the defendant must have decided to commit a felony, and then entered the dwelling for that purpose.
Notice that the intended crime does not have to be successful or completed; entering with a criminal intent at night satisfies the three elements of burglary, and may lead to a conviction.
Penalties vary according to the circumstances of the crime, and increase for second and subsequent convictions. If no one was present in the dwelling, and the defendant was unarmed, penalties include up to 20 years in prison. If anyone (other than an accomplice) was present at the time of the crime, penalties increase to at least ten years (and up to life) in prison. And if the defendant was armed with a firearm during the crime, penalties increase to at least to at least 15 years (and up to life) in prison.
(266 Ma. Gen Laws Ann. § 14.)
Home invasion, like burglary, requires entry of a dwelling at night with the intent to commit a crime inside, as described above, but it is a more serious crime because it also requires that the defendant knew someone was at home, used force or threats on one or more people in the house, and did all this while armed with a dangerous weapon.
Penalties include at least 20 years (and up to life) in prison. (266 Ma. Gen Laws Ann. § 18C.)
It is also illegal to make or possess burglar’s tools with the intent to use them (or knowingly allow them to be used) in a burglary. These include instruments for prying open doors and vaults, or otherwise gaining entry or stealing from the property once inside. Penalties include up to ten years in prison, or a fine of up to $1,000 and two and a half years in jail. (266 Ma. Gen Laws Ann. § 49.) For more information on how even everyday items can become burglar’s tools, see Burglary Tools.
Similar to burglary, the crime of breaking and entering requires that the defendant broke into or entered a structure (other than a dwelling) with the intent to commit a felony. It also includes attempting to or actually breaking into or otherwise destroying a safe or other similar storage depository with the intent to steal the contents.
Penalties vary according to whether the offense was committed during the day or night, and whether the defendant was armed. For example, when the crime occurred at night, penalties include up to twenty years in prison or up to two and a half years in jail. (266 Ma. Gen Laws Ann. § 16.)
But breaking and entering during the day incurs up to ten years in prison or up to two years in jail. However, if the defendant was armed, the penalties increase to at least five years in prison or up to two and a half years in jail. (266 Ma. Gen Laws Ann. § 18.)
Similar to burglary, trespass is defined as knowingly entering into a private structure or onto private property without the authority to do so. But unlike burglary, no intent to commit a crime inside is required, the unlawful entry itself is the crime; and trespass may occur at any time of the day or night.
As defined, trespass requires “knowing” entry, which means that the defendant had notice that the property was private. This may be satisfied in several ways, including personal notification by the property owner (or another authorized person, like a manager or security guard), or conspicuously posted signs (for example reading, “No Entry,” “Private Property,” or “No Trespassing”).
Massachusetts law specifies that trespassing does not apply to “holdover tenants,” (people who have legally leased or rented a residence, and remain after the tenancy has ended). Landlords may recover possession of such premises only through appropriate civil proceedings.
Penalties for trespassing include up to 30 days in jail, a fine of up to $100, or both. (266 Ma. Gen Laws Ann. § 120.)
If you have been charged with burglary, criminal trespass, or a related crime, or if you have questions about state laws, consult an experienced local criminal defense attorney. Only an attorney can review the unique facts of your situation, and advise you on how the law will apply to your case.