“First-Degree Burglary” in Colorado – C.R.S. § 18-4-202

Colorado Revised Statute § 18-4-202 C.R.S. prohibits first-degree burglary, which is knowingly entering someone else’s property with the intent to commit a crime and either:

• committing an assault or
• having a deadly weapon.

As Colorado’s most serious burglary crime, first-degree burglary is a class 3 felony, carrying:

• 4 to 12 years in prison (plus 3 years of parole) and/or
• $3,000 to $750,000 in fines.

However, the prison range for 1st-degree burglary becomes 10 to 32 years if it is charged as a “crime of violence (COV). COVs are crimes where you:

• used or possessed and threatened the use of a deadly weapon or
• caused serious bodily injury or death to any other person except another participant.

In this article, our Denver criminal defense lawyers will address the following key issues regarding first-degree burglary laws in Colorado:

• 1. Elements of C.R.S. 18-4-202
• 2. Defenses
• 3. Record Seals
• Frequently Asked Questions
• Additional Reading

1. Elements of C.R.S. 18-4-202

For you to be convicted of first-degree burglary in Colorado, prosecutors have to prove the following three elements beyond a reasonable doubt:

1. You knowingly and unlawfully entered or remained in a building or occupied structure; and
2. During entry you intended to commit a crime against another person or property inside (except trespass); and
3. You either:
   • committed assault or menace against any person (this can include domestic violence), or
   • were armed with explosives, or
   • used a deadly weapon, or
   • possessed and threatened the use of a deadly weapon.

It is not necessary that you forcibly “break into” a building for you to be guilty of burglary. Though it is necessary that you form the intent to commit a crime inside before entering the premises: If you entered a building and only afterwards decided to steal from it, then you would be guilty of just theft.¹

Deadly Weapons

One of the aggravating circumstances that elevates a second-degree burglary charge to first-degree in Colorado is that you had a deadly weapon. A deadly weapon is:

• A firearm, whether loaded or unloaded; or
• A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury.²

Examples of deadly weapons include (but are not limited to):

• Guns,
• Knives,
• Baseball bats,
• Metal tools (such as hammers),
• Chainsaws,
• Blow torches,
• Your fists (depending on the circumstances), and
• Any hidden object you represent to be a deadly weapon.

Explosives

Another element that turns 2nd-degree burglary into 1st-degree in Colorado is being armed with explosives. An “explosive” means any material or container containing a chemical compound or mixture commonly used to produce an explosion that would create a sudden destructive effect.³

Explosives include (but are not limited to):

• Dynamite,
• C4,
• Blasting agents,
• Blasting caps,
• Exploding cords,
• T.N.T. and its mixtures,
• Nitroglycerin,
• Missiles,
• Bombs, and
• Molotov cocktails.

Assault and Menacing

Even if you do not have a deadly weapon or explosives, your Colorado burglary case will be prosecuted in the first-degree if you assault or menace someone.

Assault is unlawfully causing injury to another person, such as by hitting them or throwing objects at them. Like burglary, there are three degrees of assault that correspond with the seriousness of the case.

Meanwhile, menacing is knowingly placing (or attempting to place) someone in fear of imminent serious bodily injury through any threat or physical action. An example is holding a fist up to someone’s face and threatening to punch them.⁴

A first-degree burglary occurs when you commit a second-degree burglary but certain additional factors are met.

2. Defenses

Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with burglary, including in the first-degree. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries at getting C.R.S. 18-4-202 charges reduced or dismissed:

1. You were lawfully on the property. Unless the prosecution can produce proof you entered or remained on the property without permission of the owner/manager, then burglary charges are inapplicable to your case. Often we can find evidence such as text messages and voicemails by property owners that explicitly invited our clients onto their property.
2. You had no intent to commit a crime. This is our most successful defense because prosecutors have no way of physically showing what was going on inside your head. Unless the D.A. can prove beyond a reasonable doubt that you lacked an innocent reason for being on the property, the court has to dismiss the burglary charge.
3. Law enforcement performed an unlawful search. Perhaps the police in your case had an invalid search warrant or conducted a warrantless search without legal justification. When this happens, we ask the court to suppress any evidence the police found from their unlawful search. Assuming the judge agrees, the D.A. may be forced to drop the burglary charge for lack of proof.

Alternatively, it may be possible to get a first-degree burglary charge reduced to second-degree burglary if the D.A. has insufficient evidence to prove any aggravating factors (such as you having a deadly weapon or being violent).

First-degree burglary is always a felony.

3. Record Seals

First-degree burglary convictions can never be sealed from your criminal record in Colorado. That is one reason we fight so hard to get these charges reduced to a sealable offense or dropped altogether.

Note that if your 1st-degree burglary charge gets totally dismissed, then the court should automatically seal your record.⁵ Though to be sure, you are advised to petition for a record seal yourself.

A common defense to burglary is lack of intent to commit a crime inside.

Frequently Asked Questions

What is the difference between first-degree and second-degree burglary in Colorado?

First-degree burglary occurs when you unlawfully enter a building intending to commit a crime AND either assault someone, have a deadly weapon, or carry explosives. Second-degree burglary is the basic charge without these aggravating factors. First-degree is a class 3 felony with four to 12 years in prison, while second-degree carries lighter penalties.

Do I have to actually “break in” to be charged with burglary?

No, you do not need to forcibly break into a building. Burglary can occur by simply entering unlawfully or staying after you are supposed to leave. The key is that you must have formed the intent to commit a crime before entering – if you only decided to steal after already being inside legally, it would be theft, not burglary.

What counts as a deadly weapon in a first-degree burglary case?

A deadly weapon includes any firearm (loaded or unloaded), knives, baseball bats, hammers, chainsaws, and even your fists in certain circumstances. It is defined as anything capable of causing death or serious injury based on how it is used or intended to be used. Even representing that a hidden object is a deadly weapon counts.

Can a first-degree burglary conviction ever be removed from my record?

No, first-degree burglary convictions can never be sealed from your criminal record in Colorado. However, if your charges are dismissed entirely, the court should automatically seal your record. This is why it is important to fight for reduced charges or dismissal rather than accepting a conviction.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law – Indiana Law Review.
• Burglary – Crime & Justice.
• Reformation of Burglary – William & Mary Law Review.
• Reconceptualizing Burglary: An Analysis of the Use of Burglary as a Criminal Enhancement – Virginia Journal of Criminal Law.
• That’s Not a Burglary! Classic Crimes and Current Codes – Houston Law Review.

Also see our related article about third-degree burglary (C.R.S. 18-4-204).

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