Unauthorized Entry in a Dwelling in the First Degree

Unauthorized Entry in a Dwelling in the First Degree: H.R.S. § 708-812.55 (Applicable to offenses occurring on or after July 5, 2011) [In Count (count number) of the Indictment/Complaint, the] [The] Defendant, (defendant's name), is charged with the offense of Unauthorized Entry in a Dwelling in the First Degree. A person commits the offense of Unauthorized Entry in a Dwelling in the First Degree if he/she intentionally or knowingly enters unlawfully into a dwelling and another person was, at the time of the entry, lawfully present in the dwelling, and the other person [was sixty-two years of age or older] [was an incapacitated person] [had a developmental disability]. There are three material elements of the offense of Unauthorized Entry in a Dwelling in the First Degree, each of which the prosecution must prove beyond a reasonable doubt. These three elements are: 1. That, on or about (date) in the [City and] County of (name of county), the Defendant intentionally or knowingly entered unlawfully into a dwelling; and 2. That another person was, at the time of the entry, lawfully present in the dwelling; and 3. That the other person [was sixty-two years of age or older] [was an incapacitated person] [had a developmental disability]. Notes H.R.S. § 708-812.55. For definition of states of mind, see instructions: For definition of terms defined by H.R.S. Chapter 708, see instructions: For definition of “developmental disability” see HRS § 333E-2. For definition of “incapacitated person” see HRS § 560: 5- 102. The commentary on § 708-812.55 reads as follows: Act 187, Session Laws 2011, established the offense of unauthorized entry in a dwelling in the first degree, a class B felony, for the unauthorized entry in a dwelling if another person, at the time of entry, was lawfully present in the dwelling and the person was sixty-two years of age or older, was an incapacitated person, or had a developmental disability. The legislature found that home invasions are traumatic experiences for the victims and may be especially frightening for vulnerable elderly and disabled individuals present during the intrusion. The legislature intended that the presence of a person lawfully in the dwelling shall be a strict liability element and that it shall not be necessary to prove that a defendant knew or had any reason to know that the person lawfully in the dwelling was sixty-two years of age or older, incapacitated, or disabled. Conference Committee Report No. 32. Consistent with the commentary and the majority opinion in State v. Buch, 83 Hawai’i 308, 926 P.2d 599 (1996), the states of mind specified in the definition of the offense are not made applicable to elements two and three. See also H.R.S. § 702-207.