“First-Degree Burglary” in Colorado – CRS § 18-4-202

Under Colorado CRS § 18-4-202, you commit the crime of first-degree burglary if you

1. knowingly enter someone else’s property with the intent to commit a crime, and
2. commit an assault on someone or have explosives or a deadly weapon.

As the most serious burglary crime, first-degree burglary is a class 3 felony that carries

• 4 to 12 years in prison and/or
• $3,000 to $750,000 in fines.

The language of 18-4-202 states that:

(1) A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, other than trespass as defined in this article, against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime assaults or menaces any person, the person or another participant is armed with explosives, or the person or another participant uses a deadly weapon or possesses and threatens the use of a deadly weapon.

Burglary is divided into three categories:

1. first-degree burglary (CRS 18-4-202)
2. second-degree burglary (CRS 18-4-203)
3. third-degree burglary (CRS 18-4-304)

The degrees of burglary are divided based on:

• its severity,
• the type of property, or
• the level of danger to potential victims.

Below, our Colorado criminal defense lawyers discuss the following frequently asked questions about first-degree burglary charges for Colorado residents:

• 1. What is burglary?
  • 1.1 What does “knowingly” mean?
  • 1.2 Do I have to “break in” to enter or unlawfully remain?
  • 1.3 Do I have to already have the intent to commit a crime?
• 2. What is first-degree burglary?
• 3. What is a deadly weapon under Colorado law?
  • 3.1 Do I actually have to use the deadly weapon?
• 4. What is an explosive under Colorado law?
• 5. What is assault or menacing under Colorado law?
• 6. What are the penalties for this offense?
  • 6.1 What is a “crime of violence?”
• 7. What defenses can I raise in my case?

1. What is burglary?

Burglary in Colorado is separated into three elements:

1. you knowingly
2. entered or unlawfully remained on another person’s property
3. with the intent to commit any crime (other than criminal trespass) while on the property.¹

1.1 What does “knowingly” mean?

You commit an offense knowingly if you:

• conduct yourself in a way or under a circumstance prohibited by a Colorado burglary law, or
• are aware that the conduct is practically certain to cause a result prohibited by the law.²

You must commit each element of the offense knowingly in order to be guilty of the crime.

1.2 Do I have to “break in” to enter or unlawfully remain?

No. While many people imagine a break in late at night as a burglary, that is not necessary. You could simply walk right through the front door without permission in order to commit a crime.³

Example: Ann walks through the unlocked front door of a house while the family is in the back having a party. She steals a television, jewelry, and cash. Ann is guilty of burglary, even though she didn’t “break in” when she entered unlawfully.

1.3 Do I have to already have the intent to commit a crime?

Yes. It is not enough that you formed the intent to commit the crime after entering the premises. If the intent was formed to commit the crime after you entered, you are not guilty of burglary.

2. What is first-degree burglary?

First-degree burglary under CRS 18-4-202 is the most serious form of the crime.

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

• knowingly break an entrance into;
• enter unlawfully in; or
• remain unlawfully after a lawful or unlawful entry in

a building or occupied structure with the intent to commit a crime against another person or property.⁴

If in addition to committing the offense of the second degree you do any of the following, you are guilty of the offense in the first degree:

• assault or menace any person (this can include domestic violence); or
• are armed with explosives; or
• use a deadly weapon; or
• possess and threaten the use of a deadly weapon.⁵

These aggravating circumstances cause the second-degree burglary to rise to the level of a first-degree offense.

3. What is a deadly weapon under Colorado law?

For purposes of CRS 18-4-202, a “deadly weapon” is defined as:

• 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.⁶

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.

3.1 Do I actually have to use the deadly weapon?

No. Simply threatening to use a deadly weapon you in fact possess is sufficient to constitute first-degree burglary.

Example: Gordy carries a shotgun into a Denver home in order to rob it. He threatens to shoot Gary, his wife, and two children if they do not get on the floor and stay there while he robs the place. Gordy then proceeds to steal a lot of property and never actually uses the gun on any of the residents. A peace officer arrests Gordy, and he gets charged. Gordy is still guilty of first-degree burglary because he threatened the use of a deadly weapon that he possessed, even though he did not actually use it.

4. What is an explosive under Colorado law?

An “explosive” under Colorado law means:

• any material or container
• containing a chemical compound or mixture
• commonly used for the purpose of producing an explosion
• that would create a sudden destructive effect.⁷

These include but are not limited to:

• dynamite,
• C4,
• blasting agents,
• blasting caps,
• exploding cords,
• T.N.T. and its mixtures,
• nitroglycerin,
• missiles,
• bombs,
• Molotov cocktails, and
• more.

Use of any of these or other products that could or are designed to explode could lead to a charge of first-degree burglary if all of the other elements are also met.

5. What is assault or menacing under Colorado law?

You commit the crime of menacing when:

• you knowingly
• place or attempt to place another
• in fear of imminent serious bodily injury
• through any threat or physical action.⁸

You can commit a Colorado assault offense in different ways.

6. What are the penalties for this offense?

First-degree burglary cases are usually a class 3 felony. Punishment for Colorado first-degree burglary can include:

• 4-12 years in prison (with 5 years mandatory parole), and/or
• a fine of $3,000-$750,000.

If you commit first-degree burglary of a controlled substance, you are guilty of a class 2 felony.

Consequences of first-degree burglary of controlled substances are:

• 8-24 years in prison (with 5 years mandatory parole), and/or
• A fine of $5,000-$1,000,000.

6.1 What is a “crime of violence?”

First-degree burglary carries an enhanced penalty as a Colorado “crime of violence” if:

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

As a crime of violence, first-degree burglary of a controlled substance carries a mandatory prison sentence of 16-48 years.

7. What defenses can I raise in my case?

To defend a case against first-degree burglary, you can raise defenses including but not limited to:

• you were lawfully on the property;
• you did not know you were unlawfully on the property;
• one of the aggravating circumstances was not proven; or
• law enforcement misconduct occurred in gathering evidence.

Depending on the case, it may be possible to get charges substantially reduced – such as to a misdemeanor – or even dismissed.

Call us for help…

For questions about first-degree burglary or to confidentially discuss your case with one of our skilled Colorado criminal defense attorneys, do not hesitate to contact our law firm.

Our law office is in Denver, but we also represent clients in and around Colorado Springs, Boulder, Aurora, Fort Collins, Lakewood, Centennial, Westminster, Thornton, and several nearby cities in the state of Colorado. We offer free consultations regarding all criminal offenses. If we form an attorney-client relationship, we can discuss retainer fees including discount rates and payment plans.

Also see our article on possession of burglary tools (CRS 18-4-205).

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