§708-811  Burglary in the second degree. 
(1)  A person commits the offense of burglary in the second degree if the
person intentionally enters or remains unlawfully in a building with intent to
commit therein a crime against a person or against property rights.



(2)  Burglary in the second degree is a class C
felony. [L 1972, c 9, pt of §1; gen ch 1993]



 



Case Notes



 



  Evidence adequate to support conviction.  64 H. 226, 638 P.2d
330.



 



COMMENTARY ON §§708-810 AND 811



 



  It has been said that the essence of the offense of burglary
is "invasion of premises under circumstances specially likely to terrorize
occupants."[1]  Alternatively, it has been proposed that the primary
function of burglary statutes is to crystallize the doctrine of attempt in
situations of criminal trespass.[2]  The former view implies that the offense
is conceived of, in part, although not necessarily defined in terms of a harm
to personal dignity and sense of safety.  With respect to the second view, the
need to crystallize the doctrine of attempt in cases involving criminal
trespass is largely obviated by this Code's clear treatment of the doctrine of
attempt.[3]  However, despite the absence of clearly articulated substantive
reasons for making burglary a separate offense, the Code defers to the
overwhelming body of decisional and statutory law recognizing this crime.[4] 
In the words of the Model Penal Code commentary,



If we were
writing on a clean slate, the best solution might be to eliminate burglary as a
distinct offense. ...  But we are not writing on a clean slate.  Centuries of
history and a deeply embedded Anglo-American conception like burglary cannot
easily be discarded.  The needed reform must therefore take the direction of
narrowing the offense to something like the distinctive situation for which it
was originally devised: invasion of premises under circumstances specially
likely to terrorize occupants.[5]



  The Code rejects the division of burglary into three degrees
of offense,[6] and follows the Model Penal Code approach of dividing the
offense into two degrees and treating the generally recognized aggravating
circumstances as of roughly equal significance.[7]  Thus, either (a) possessing
a dangerous instrument, or (b) inflicting or attempting to inflict bodily injury,
or (c) recklessly disregarding the risk that the building is a dwelling is
sufficient to aggravate the class C offense and make it a class B offense.



  Previously, Hawaii law defined burglary as the entry of a
building or other structure of various descriptions, with intent to commit
larceny of the first or second degree or to commit any felony.[8]  If the
conduct occurred at night, with the possession of a deadly weapon, or in a
legally-occupied building or structure, the offense was burglary in the first
degree.[9]  All other burglary was burglary in the second degree.[10]



  The previous Hawaii definitions were similar to those adopted
by this Code.  The Code covers both "entering and remaining
unlawfully" upon premises; and the definition of this phrase is provided
by §708-800.  The Code alters the circumstances that aggravate the offense and
make it burglary in the first degree.  Committing the offense while armed with
a dangerous instrument remains an aggravating circumstance.  The Code, however,
gives no significance to the time of the occurrence of the event.  Unlike prior
law, the Code makes it an aggravating circumstance to inflict or attempt to
inflict bodily injury during the course of the offense.  Rather than have the
degree of the offense turn on the fortuitous circumstance of whether the
structure happened to be occupied, the Code makes it an aggravating
circumstance if the structure is a dwelling and the defendant is culpable in
this regard.



  Another substantive change is the reduction of penalty.  It
is felt that this reduction reflects the desire to treat different offenses
separately.  To the extent that actual harm or theft do occur, they may be
dealt with under appropriate sections of the Code:  where they are absent, it
is felt that the prior law's provisions for a possible twenty-year sentence[11]
was too severe for an offense which may involve no major injury other than
unpermitted entry.



 



__________



§§708-810 And 811 Commentary:



 



1.  M.P.C., Tentative Draft No. 11, comments at 57 (1960).



 



2.  Prop. Mich. Rev. Cr. Code, comments at 200; cf. commentary
on §§708-813 and 814, this Code.



 



3.  Cf. §§705-500 through 502, and commentary thereon. 
However, it must be noted that simultaneous convictions for criminal trespass
and attempt of another offense would yield concurrent rather than consecutive
sentences, and, in most cases, not the kind of penalty commensurate with the
view of burglary as a crystallization of the doctrine of attempt in aggravated
cases. Still, one might argue that whatever special aggravation arises out of
the conjunction of criminal trespass and criminal attempt (and it is difficult
to find a rational articulation of this aggravation) ought to be dealt with
individually, according to the actual and potential harms involved in each
instance, rather than on a wholesale basis which ignores individual
differences.



 



4.  Both the Model Penal Code and the Proposed Michigan Revised
Criminal Code adopt this approach; see M.P.C., Tentative Draft No. 11, comments
at 57-58 (1960), and Prop. Mich. Rev. Cr. Code, comments at 200.



 



5.  M.P.C., Tentative Draft No. 11, comments at 57 (1960).



 



6.  See Prop. Mich. Rev. Cr. Code §§210 to 212.



 



7.  See M.P.C. §221.1.



 



8.  H.R.S. §726-1.



 



9.  Id. §726-3.



 



10. Id.



 



11. Id. §726-4.