CRS 18-4-202 is the Colorado law that defines first-degree burglary as knowingly entering another’s property with the intent to commit a crime, and committing an assault on someone or having 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:
- first-degree burglary (CRS 18-4-202)
- second-degree burglary (CRS 18-4-203)
- 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?
- 2. What is first-degree burglary?
- 3. What is a deadly weapon under Colorado law?
- 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?
- 7. What defenses can I raise in my case?
Burglary in Colorado is separated into three elements:
- a person knowingly
- entered or unlawfully remained on another person’s property
- with the intent to commit any crime (other than criminal trespass) while on the property.1
A person commits an offense knowingly if he or she:
- conducts him or herself in a way or under a circumstance prohibited by a Colorado burglary law, or
- is aware that the conduct is practically certain to cause a result prohibited by the law.2
A person must commit each element of the offense knowingly in order to be guilty of the crime.
No. While many people imagine a break in late at night as a burglary, that is not necessary. A person 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.
Yes. It is not enough that a person formed the intent to commit the crime after entering the premises. If the intent was formed to commit the crime after the person entered, he or she is not guilty of burglary.
First-degree burglary under CRS 18-4-202 is the most serious form of the crime.
A first-degree burglary occurs when a person commits a second-degree burglary but certain additional factors are met. Second-degree burglary is committed when a person:
- knowingly breaks an entrance into;
- enters unlawfully in; or
- remains 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 a person does any of the following, he or she is guilty of the offense in the first degree:
- assaults or menaces any person (this can include domestic violence); or
- is armed with explosives; or
- uses a deadly weapon; or
- possesses and threatens 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.
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):
- Baseball bats,
- Metal tools (such as hammers),
- Blow torches,
- Your fists (depending on the circumstances), and
- Any hidden object you represent to be a deadly weapon.
No. Simply threatening to use a deadly weapon the person in fact possesses 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.
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:
- blasting agents,
- blasting caps,
- exploding cords,
- T.N.T. and its mixtures,
- Molotov cocktails, and
Use of any of these or other product 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.
A person commits the crime of menacing when:
- he or she knowingly
- places or attempts to place another
- in fear of imminent serious bodily injury
- through any threat or physical action.8
A person can commit a Colorado assault offense in different ways.
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 a person commits first-degree burglary of a controlled substance, he or she is 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.
First-degree burglary carries an enhanced penalty as a Colorado “crime of violence” if:
- the suspect used or possessed and threatened the use of a deadly weapon; or
- the suspect 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.
To defend a case against first-degree burglary, a person can raise defenses including but not limited to:
- the suspect was lawfully on the property;
- the suspect did not know he or she was 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).