Burglary, Home Invasion and Assault in a Dwelling

Burglary and home invasion are some of the most serious crimes in Massachusetts

Being charged with breaking into someone’s home is a life-altering event. A conviction for residential burglary or home invasion in Massachusetts carries serious penalties.

When charged with the most serious offenses, you need the most serious lawyers. As former prosecutors with over forty years of combined experience, Attorneys Erkan and Sullivan are up to the task. By leveraging our deep knowledge of the law, our battle-tested trial tactics, and our relentless defense philosophy, we are the ones to even the odds for you.

Armed Burglary: elements and penalty.

Under G.L. c. 266, § 14, armed burglary occurs is punishable by life imprisonment, with a minimum sentence of ten years. If armed with a shotgun, the minimum sentence is increased to fifteen years. Although this statute carries a minimum sentence, it is not mandatory, such that, conceivably, a judge would have the option to sentence the accused to probation. If, however, the person has a record of conviction for the same offense, the minimum sentence jumps to twenty years, and the sentence becomes mandatory.

In order to be convicted of this offense, the prosecution must prove the following beyond a reasonable doubt:

• Breaking. This occurs where the defendant exerted physical force, however slight, and thereby removed an obstruction to gaining entry into someone else’s home. Breaking includes moving in a significant manner anything that barred the way. Examples would include such things as opening a closed door or window whether locked or unlocked or going in through an open window that is not intended for use as an entrance. On the other hand, going through an unobstructed entrance such as an open door does not constitute a breaking.
• Entering. An entry occurs when there is any intrusion – no matter how slight – into a protected enclosure by any part of the defendant’s body. The entering must be the “dwelling place of another.” This means that one cannot burglarize their own home. This issue comes up most frequently in circumstances where a person had a relationship with the alleged victim but became estranged.
• During the night time. “Nighttime” begins one hour after sunset and ends one hour before sunrise the next day. 
• Intent to commit a felony. The law permits a presumption that a person who breaks and enters has the intent to commit the crime of felony stealing. Prosecutors don’t need to prove that a crime was completed—only that the accused intended to commit a felony at the time of the entry. For example, entering a home with tools commonly used for theft can be evidence of intent.
• Aggravating factor. The offender was armed with a dangerous weapon at the time of such breaking or entry, or so armed himself in such house, or made an actual assault on a person lawfully therein.

Home invasion: elements and penalty.

Massachusetts law defines home invasion under G.L. c. 265, § 18C. This offense is punishable by twenty years to life in prison. Like armed burglary, the minimum sentence under this statute is not mandatory. This means the judge can, instead of imposing sentence, place the accused on probation.

The elements of the crime of home invasion are as follows:

• Entering. An entry occurs when there is any intrusion – no matter how slight – into a protected enclosure by any part of the defendant’s body. The entering must be the “dwelling place of another.” This means that one cannot burglarize their own home. This issue comes up most frequently in circumstances where a person had a relationship with the alleged victim but became estranged.
• Knowledge of persons present therein. The accused must be shown to have known or had reason to know one or more persons were present within the dwelling house when he entered or remained in it.
• Armed at time of entry. The government must prove that the accused was armed with a dangerous weapon at the time of entry. Arming oneself once inside does not qualify under this statute.
• Force. The government must prove the accused used force or threatened the imminent use of force on any person within the dwelling house, or intentionally caused injury to any such person.

The Commonwealth takes home invasion extremely seriously because it involves a direct threat to individuals in their homes.

Lesser Included Offenses

Burglary and home invasion offenses can often be reduced to much less serious offenses, including breaking and entering (G.L. c. 266, § 16), breaking and entering with intent to commit a misdemeanor or in the daytime (G.L. c. 266, § 16A), or even trespassing (G.L. c. 266, § 120). Another lesser (but still serious) offense is entering in the daytime with intent to commit a felony, causing fear (G.L. c. 266, § 17) , punishable by up to ten years in prison, and, if armed with a firearm, is subject to a 2 1/2 year minimum sentence. If unarmed, burglary is punishable by a maximum of twenty years under G.L. c. 266, § 16.

Differences Between Burglary and Home Invasion

While both offenses involve unlawful entry into a home, there are critical distinctions:

• Burglary:
  • Requires intent to commit a felony.
  • Does not require the home to be occupied at the time.
• Home Invasion:
  • Requires knowledge that someone is inside the home.
  • Involves force or the threat of force with a dangerous weapon.

Relentless Defense Against Burglary and Home Invasion Charges

Just because someone is charged doesn’t mean they’ll be convicted. At Erkan & Sullivan, P.C., we pride ourselves in pushing the envelope, developing cutting edge defense strategies tailored to every unique case. Some common defenses include:

1. Challenging Intent:
   • For burglary, one of our focuses includes whether the accused had the intent to commit a felony at the time of entry. Did the person enter with the intent to steal, or was he just looking for a place to stay the night? Without this critical element, the charges may be reduced or dismissed.
   • For home invasion, we often raise doubt as to whether the government can prove that the person entered with a violent purpose, as opposed to a conflict arising after entry was already complete.
2. Mistaken Identity:
   • Misidentification by witnesses or faulty forensic evidence can be challenged through cross-examination and expert testimony. Read our discussion of identification defenses here.
3. Lack of Knowledge or Force:
   • For home invasion, the prosecution must prove that the accused knew someone was inside and used or threatened force. Demonstrating the absence of these elements can weaken the case.
4. Dwelling Place of Another: If the parties were known to one another in the past, we may be able to argue that the location was not the “dwelling place of another.” If, for example, the parties had been in a dating relationship or were roommates, this element is at issue. If this element is not proved, neither the offense of burglary nor home invasion has occurred.
5. Challenging the Crime Scene or Police Investigation: In our experience, police commit many cardinal errors when processing the crime scene and conducting investigations. When police make procedural missteps, we will subject them to punishing cross-examination which oftentimes undermines the foundation of the entire prosecution. Read about common problems with crime scene preservation here.
6. Constitutional Violations:
   • If police obtained evidence through an illegal search or seizure, or improper interrogation tactics, we’ll move to suppress it, often resulting in dismissal of the charges.

Start Building Your Defense Today

Facing residential burglary or home invasion charges in Massachusetts can be overwhelming, but the experienced team at Erkan & Sullivan, P.C. is here to help. We understand the nuances of Massachusetts law and how to craft powerful defenses tailored to your case. Don’t face these charges alone—let us fight to protect your rights and your future.

Contact us at (978) 474-0054 or use our online form to schedule a consultation. With Erkan & Sullivan by your side, you’ll have the confidence of knowing you’re in the hands of a skilled and determined defense team.