Unauthorized Entry in a Dwelling in the Second Degree

Unauthorized Entry in a Dwelling in the Second Degree: H.R.S. § 708-812.6 (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 Second Degree. A person commits the offense of Unauthorized Entry in a Dwelling in the Second 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. There are two material elements of the offense of Unauthorized Entry in a Dwelling in the Second Degree, each of which the prosecution must prove beyond a reasonable doubt. These two 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. Notes H.R.S. § 708-812.6. For definition of states of mind, see instructions: For definition of terms defined by H.R.S. Chapter 708, see instructions: The commentary on § 708-812.6 reads in part as follows: Act 187, Session Laws 2011, redesignated the offense of unauthorized entry in a dwelling as a second degree offense. The legislature also repealed the element of reckless disregard of the risk that another person was lawfully present in the dwelling, with the intent that the presence of a person lawfully present in the dwelling shall be a strict liability element, and for purposes of prosecuting the offense, it shall not be necessary to prove that a defendant knew or had any reason to know that someone else was lawfully in the dwelling. 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 element two. See also H.R.S. § 702-207.