## Facts

- Samuel W. Cooper lived with his mother, Shirley Thorman, and his young daughter; Cooper and Thorman argued frequently about finances.
- After a February 26, 1995 argument, police arrested Cooper for harassing Thorman.
- Cooper was released subject to a temporary restraining order barring contact with Thorman and barring him from her home.
- The next day, Cooper went to Thorman’s home in violation of the restraining order.
- Thorman testified Cooper was not invited, broke in, threatened her, and assaulted her; Cooper testified he was invited or entered only to get out of the cold and denied assault.
- A jury convicted Cooper of second-degree burglary under Colo. Rev. Stat. § 18-4-203.
- Over objection, the trial court instructed the jury it could convict if Cooper formed the intent to commit the ulterior offense either before or after unlawful entry, so long as it coincided with unlawful presence.
- The court of appeals affirmed; the state supreme court granted review on the correctness of the intent-timing instruction.

## Issues

1. Under Colo. Rev. Stat. § 18-4-203, must the intent to commit an ulterior offense exist at the time the defendant becomes a trespasser, or may it be formed after unlawful entry or after unlawful presence begins?

## Decision

- The Colorado Supreme Court reversed the court of appeals and vacated the burglary conviction.
- The court held that burglary requires the defendant to have the intent to commit the ulterior offense at the point the defendant becomes a trespasser.
- The trial court’s instruction was erroneous because it permitted conviction even if the jury found intent was formed only after unlawful entry or after the trespass began.
- The case was remanded for further proceedings consistent with the opinion.

## Legal Principles

- Second-degree burglary under § 18-4-203 consists of unlawful entry or unlawful presence in an occupied building coupled with intent to commit another crime on the premises.
- The requisite intent must coincide temporally with the defendant’s status as a trespasser at the moment the defendant becomes a trespasser (by unlawful entry or by remaining unlawfully).
- If intent to commit the ulterior offense is formed only after the trespass is underway, the defendant may be guilty of trespass and the ulterior offense (or attempt), but not burglary.
- Burglary is not a sentencing add-on for any crime committed during a trespass; it targets trespass undertaken with a further criminal purpose at the outset of the trespass.

## Conclusion

The court set aside the burglary conviction because the jury was allowed to convict on a theory that the ulterior intent could arise after Cooper became a trespasser, but the burglary statute requires intent to commit another crime at the moment the defendant first becomes a trespasser.


Cooper v. People, 973 P.2d 1234 (Colo. 1999)