18-4-202. First degree burglary.
(1) A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime, other than trespass as defined in this article, against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime assaults or menaces any person, or the person or another participant is armed with explosives or a deadly weapon.
(2) First degree burglary is a class 3 felony.
Distinguished from felony menacing. It is possible to commit a first degree burglary without also perpetrating felony menacing. The merger doctrine does not apply because there is no requirement in this section that a victim be placed in fear of imminent serious bodily injury by a deadly weapon as there is in the felony menacing statute. People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980).
There is no requirement that victim be placed in fear of imminent serious bodily injury by a deadly weapon under the first degree burglary statute. People v. Montanez, 944 P.2d 529 (Colo. App. 1996).
Where the only evidence concerning the presence of deadly weapons at the time of the robbery was that defendant was carrying stolen items, including weapons, in a canvas sack during commission of the burglary, such evidence was insufficient to prove that defendant was armed with a deadly weapon, a requisite element of burglary
. People v. Moore, 841 P.2d 320 (Colo. App. 1992).
Second degree burglary becomes first degree burglary when the perpetrator increases the risk of deadly or bodily harm to an occupant or other person present by possessing a deadly weapon such that he knowingly places or attempts to place such person in fear of serious bodily injury or intends to and does cause serious bodily injury to any person. People v. Moore, 841 P.2d 320 (Colo. App. 1992).If the defendant steals a deadly weapon and thereby becomes armed with a deadly weapon, the burglary is elevated to first degree, and there is no requirement that the prosecution show that the defendant assaulted or menaced anyone with the deadly weapon.
People v. Loomis, 857 P.2d 478 (Colo. App. 1992).The defendant is considered "armed" with a deadly weapon if the weapon is easily accessible and readily available for use by the defendant.
The court need not consider the defendant's willingness or present ability to use the deadly weapon. People v. Loomis, 857 P.2d 478 (Colo. App. 1992).