Bodily Injury Aggravator

The second route to the second degree appears in § 221.1(2)(a), which raises burglary to a felony of the second degree when, in the course of committing the offense, the actor purposely, knowingly, or recklessly inflicts or attempts to inflict bodily injury on anyone.¹ The text says nothing about the kind of building entered or the hour of entry, so this route operates independently of the dwelling-and-night route taught above. A daytime burglary of a store, which would otherwise sit at the third-degree baseline, therefore becomes a second-degree felony as soon as the burglar hurts or tries to hurt a person. The difference in stakes is real, because the third degree carries a maximum term of five years and the second degree carries a maximum of ten.²

The reason for a separate injury trigger follows from what the grades are meant to track. The dwelling-and-night route estimates danger by proxy, on the theory that an occupied home at night makes a confrontation likely. The injury route needs no proxy, because the danger has already materialized. Once a person has been hurt, or the burglar has tried to hurt one, the intrusion has produced the harm the upgrade exists to deter, and the hour and the type of building add nothing to that fact. Two consequences follow from this design. The prosecutor does not have to prove a dwelling or night to reach the second degree on this route, and a burglar surprised by a person in the building has a reason to run rather than fight, since only violence, and not mere presence, moves the grade.

The only variable in that pair is what D did toward a person. Two questions remain, and each child section below takes one: how culpable the actor's state of mind must be, and what conduct and which victims count. The phrase in the course of committing the offense has its own definition, which a later section develops, so the examples here place the violence during the burglary itself.

Required Mental State

The injury must be inflicted or attempted purposely, knowingly, or recklessly.³ These are the three highest levels of culpability the Code recognizes. An actor injures purposely when harming the victim is the actor's conscious aim, knowingly when the actor is aware that injury is practically certain to follow, and recklessly when the actor consciously disregards a substantial and unjustifiable risk of injury. Negligence, which is a failure to notice a risk that a careful person would have noticed, does not appear on the list. Neither does a pure accident, in which the actor had no awareness of any risk of injury at all, so a burglar whose conduct happens to hurt someone without that awareness has not triggered the aggravator.

The line falls there because of what the upgrade punishes. The second degree responds to burglars who choose violence or who choose to gamble with other people's safety, and each listed state reflects such a choice: wanting the harm, expecting it, or consciously running its risk. An accidental injury reveals no choice of that kind, so it says nothing more about how dangerous the burglar is. Recklessness earns its place on the list for a practical reason. Without it, a burglar who swings a heavy bag through a narrow aisle full of employees, meaning only to scare them back, could escape the upgrade by pointing out that no one in particular was the target. The conscious gamble is what the upgrade reaches, and the person who takes it has already chosen to commit a crime in a place where others may appear.

Hypothetical Illustration

At noon D is inside a closed hardware store, intending to steal tools. An employee steps into the aisle, and D shoves the employee to the floor to get past, bruising her arm. D acted purposely, so the burglary is a felony of the second degree. Change the facts: D opens a stockroom door while looking for a cash box, with no idea that an employee is standing behind it, and the door strikes the employee and leaves a bruise. D was aware of no risk of injury, so the injury was an accident, and the burglary stays in the third degree unless another route applies. If D instead heard employees in the aisle and swung a heavy tool bag at head height in the narrow space to scare them off, striking one, D would have consciously disregarded an obvious risk, the injury would be reckless, and the second degree would return.

Someone was hurt in each of those scenes, and D was inside the building in each. What moved the answer was D's awareness of the risk. Students lose this issue when they treat any injury during the burglary as enough, because the injury must also have been inflicted or attempted purposely, knowingly, or recklessly.

Inflicting or Attempting Injury

The conduct side of the trigger has two alternatives. The aggravator applies when the actor inflicts bodily injury and applies equally when the actor only attempts to inflict it.⁵ The reason for reaching attempts is that the grade should not depend on luck. A burglar who lunges at a person and misses has chosen the same violence as one whose blow lands, and whether it lands turns on the victim's reflexes and the burglar's aim, neither of which changes the danger the burglar created. The culpable mental states in the text stand in front of both verbs, so an attempt qualifies only when the attempt itself was purposeful, knowing, or reckless.⁶

The victim may be anyone.⁷ The person need not be the owner, an occupant, or anyone connected to the premises, so an employee, an owner who arrives mid-burglary, a neighbor who sees the open door and steps in, a security guard, and a responding officer all qualify. The breadth follows from the interest this route protects. A burglar's choice of violence is no less dangerous because the person in the way happens to be a stranger, and a rule limited to occupants would make the grade turn on who happened to answer the alarm.

The trigger is directed at persons, which marks its outer edge. Damage to property, however destructive, does not satisfy it, and neither does a burglar's flight from a person who is never touched or targeted, as the pharmacy example showed.

What moved the answer there was whether the violence was directed at a person. The miss made no difference, and neither did the neighbor's lack of connection to the building. A fact pattern that reports no one was hurt therefore does not end the inquiry, because an attempt to injure is enough.

The two halves combine into a single trigger that stands on its own. Because it mentions neither a dwelling nor night, it can lift a burglary of any structure at any hour from the third degree to the second, and it does so without help from the dwelling-and-night route. The converse also holds. Where no injury was inflicted or attempted, the burglary is not necessarily third degree, since the armed-burglary route taught next operates independently as well.

Required Mental State

The injury aggravator does not attach to every burglary in which a person is hurt. Section 221.1(2)(a) reaches an actor who purposely, knowingly, or recklessly inflicts or attempts to inflict bodily injury, and those three words are the Code's highest levels of culpability.¹⁰ Each describes a different relationship between the burglar's mind and the harm. Under § 2.02(2)(a)(i), an actor injures purposely when causing the harm is the actor's "conscious object."¹¹ An actor injures knowingly when aware that injury is practically certain to follow, and recklessly when consciously disregarding a substantial and unjustifiable risk that injury will result. The general-principles material develops those definitions in full, so only their working sense matters here. What matters is the boundary of the list: negligence, the failure to notice a risk that a careful person would have noticed, is not on it, and neither is an accident in which the actor had no awareness of any risk.

The boundary sits at awareness because of what this route is meant to detect. The dwelling-and-night route estimates danger by proxy, but the injury route looks at what the burglar actually did, and a willingness to harm people shows up in the burglar's own mind. Each listed state reflects a choice made with the prospect of harm in view: wanting it, expecting it, or running a risk the actor knows is there. Carelessness without that awareness reflects no such choice. A thief who backs into someone he never saw has committed a property crime clumsily, and raising the grade for that result would make the penalty depend on who happened to be standing out of sight rather than on anything the burglar decided. The test is also subjective, asking what this actor was aware of and not what a careful person would have noticed, which is the difference between recklessness and the carelessness the Code leaves out.

Recklessness earns its place on the list for a separate reason. A burglar who does not want anyone hurt but pushes ahead despite a known danger has still chosen to put a person at risk. Without the word, the grade would turn on the burglar's after-the-fact claim that harm was never the goal, and the conscious gamble is exactly the choice the upgrade reaches.

Hypothetical Illustration

At 2 p.m. D is inside a jewelry store that is closed to the public, intending to steal, when a clerk steps out of the back room. If D punches the clerk to knock the clerk down, the injury is purposeful, because harm was the aim. If D, wanting only to get past, tackles the clerk onto a tile floor, aware that a fall like that will almost certainly injure, the injury is knowing. If D is carrying stolen goods toward the exit and shoves past a clerk at the top of a stairway, knowing where they stand and that a fall is a real possibility, the clerk's fall and broken arm are reckless. Each of those burglaries is a felony of the second degree, although the entry was by day and the store is not a dwelling.

Now keep the daytime store and the intent to steal, but change D's awareness. D pushes through a swinging door, and it strikes a coworker D could not see and had no reason to suspect was there, bruising her. D was unaware of any risk, so the injury is an accident, and the burglary stays in the third degree unless another route applies.

A person was hurt in every one of those scenes, and the burglary occurred by day in a non-dwelling every time, so neither the hour nor the building moved any answer. In the first three scenes D was aware of the prospect of harm and went ahead. In the last scene D was not. Students lose this issue when they ask whether D should have realized that someone was in danger, because that question measures a careful person's perception and the Code asks what D actually perceived. Each scene also places the violence during the burglary itself, and a later section defines the full time frame that the phrase in the course of committing covers.

Inflicting or Attempting Injury

The mental-state requirement settles how culpable the actor must be. The conduct requirement settles what the actor must have done and to whom. Section 221.1(2)(a) reaches an actor who inflicts bodily injury and, with equal force, one who only attempts to inflict it.¹³ The attempt alternative follows from what the upgrade responds to, which is the burglar's chosen violence. A swing that misses reflects the same choice as a swing that lands, and whether a fist connects depends on the victim's reflexes, the burglar's aim, and the width of the aisle, none of which changes how dangerous the burglar was. If only completed injuries counted, the grade would turn on luck, and the burglar who missed would be graded more leniently for reasons that have nothing to do with anything either person decided. The culpable mental states stand in front of both verbs, so an attempt qualifies only when the attempt itself was purposeful, knowing, or reckless.¹⁴

The second half of the conduct requirement concerns the victim, and the text answers it with a single word: anyone.¹⁵ The person need not own the premises, live there, or have any tie to them, so an employee, an owner who arrives mid-burglary, a neighbor who wanders in through an open door, a security guard, and an officer who gives chase all qualify. That breadth contrasts with the dwelling route, which depends on whose home the building is and who occupies it. The injury route needs no such link, because it responds to the burglar's own violence, and the danger of that violence falls on whoever steps into the burglar's path. A rule confined to occupants would also make the grade depend on who happened to answer the alarm, a matter of chance that tells nothing about the danger the burglar chose to create.

The trigger is aimed at persons, and that fixes its outer edge. Damage to property, however costly, is not bodily injury inflicted or attempted on anyone, so a burglar who wrecks a register in frustration has not met this route.¹⁶ Words alone fall outside it as well. A burglar who warns a person to stay back, and takes no step toward actually hurting that person, has neither inflicted nor attempted injury, although a different route, such as the armed-burglary route taught next, may apply on different facts. An unintended injury to the burglar also fails the trigger, because nobody was purposely, knowingly, or recklessly injured or targeted.

Hypothetical Illustration

In the afternoon a security guard confronts D inside a warehouse where D is committing a burglary. D swings a crowbar at the guard's head and misses. No injury results, but D purposely attempted to inflict bodily injury on another person, so this route is met and the burglary is a felony of the second degree, even though the entry was by day and the warehouse is not a dwelling.

Now change what D does. While stealing from a store, D smashes a glass display case and cuts only his own hand. He injures no one else and attempts no injury to anyone, so the trigger is not met, and the burglary stays in the third degree unless another route applies. The same result follows if D, startled by a clerk stepping out of the back room, warns her that she will regret it but makes no move toward hurting her.

The pair isolates one variable, which is whether D's violence was directed at a person. The miss with the crowbar made no difference, and neither did the guard's lack of any stake in D's target. The shattered glass, the cut hand, and the empty warning all lacked a purposeful, knowing, or reckless effort to hurt someone. A fact pattern that reports that no one was hurt therefore does not end the inquiry, because an attempt to injure is enough to lift the burglary to the second degree.