CRS 18-4-202 - First-Degree Burglary in Colorado

CRS 18-4-202 is the Colorado law that defines the crime of first-degree burglary.  A Burglary occurs when a person:

  • knowingly enters or unlawfully remains
  • on another person's property
  • with the intent to commit a crime other than trespass.

Degrees of the Crime

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)

Each is 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 for Colorado residents:

Burglary
Burglary occurs when a person: knowingly enters or unlawfully remains on another person's property with the intent to commit a crime other than trespass.

1. What is burglary?

Burglary in Colorado is separated into three elements:

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

1.1 What does "knowingly" mean?

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.

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. 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.

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

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.

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 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; 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.

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 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. 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 product that could or is 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?

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.

6. What are the penalties for this offense?

First-degree burglary is 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.

6.1 What is a "crime of violence?"

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.

7. What defenses can I raise in my case?

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
  • police misconduct occurred in gathering evidence.
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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 us.

We represent clients in and around Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, and several nearby cities.


Legal References:

  1. CRS 18-4-202 (First degree burglary).
  2. See CRS 18-1-501(6).
  3. Armintrout v. People, 1993, 864 P.2d 576.
  4. CRS 18-4-203 (Second degree burglary).
  5. Same as 1.
  6. C.R.S. 18-1-901 (3)(e).
  7. CRS 9-7-103 (Definitions).
  8. CRS 18-3-206.

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