Concept

Grading Step by Step

Model Penal Code Grading

Grading Step by Step

The preceding sections supplied the parts of § 221.1(2): the dwelling-of-another-at-night route, the injury route, the armed route, and the definition that sets the time frame for the last two.¹ What remains is the order in which to run them on a fact pattern. The structure of the text dictates that order. The opening clause names one route and the two subparagraphs name the others, and the text joins them as alternatives, so each route stands on its own.² Grading also presupposes an offense to grade, which means a fact pattern begins with the question whether burglary exists at all.

Exam Analysis Steps

Because each route is a separate path to the higher grade, the analysis is best run as a series of independent tests followed by a single assignment of grade. The steps are these:

Confirm that burglary is established under § 221.1 before any grading begins, which includes asking whether the structure was abandoned, since abandonment is an affirmative defense to the charge itself.³
Test the dwelling route by asking whether the burglary was perpetrated in the dwelling of another and at night, and treat the route as closed if either half fails.⁴
Test the injury route by asking whether, during an attempt, the commission, or flight afterward, the actor purposely, knowingly, or recklessly inflicted or attempted to inflict bodily injury on anyone.⁵
Test the armed route by asking whether, during an attempt, the commission, or flight afterward, the actor was armed with explosives or a deadly weapon.⁶
Assign the grade: if any one of the three routes is present the burglary is a felony of the second degree, and if none is present it is a felony of the third degree.⁷

The three tests in steps two through four are independent because each route marks a different way a burglary becomes dangerous. A dwelling at night puts the burglar where people are most likely to be home and asleep, so a confrontation is likely before anyone has chosen violence. The injury route looks at what the actor did or tried to do to another person, and the armed route looks at the capacity for lethal force the actor brought along, whether or not it was ever used. Since the dangers differ, one can exist without the others, and the text makes any one of them enough.⁸ The same text explains why overlap changes nothing. The section sorts burglaries into two grades only, and its fallback says that burglary is otherwise a felony of the third degree, so once a route places the offense in the second degree there is no higher grade for a second or third route to reach.⁹

Running all three tests on those facts takes a moment, yet the first finding already settles the grade. The remaining findings confirm the classification without raising it, so an exam answer should record them briefly and should not suggest that the burglary has moved above the second degree.

Hypothetical Illustration

At 3 p.m. D enters an unoccupied commercial building intending to steal, is unarmed, and leaves unseen. Burglary is established. The building is not a dwelling and the hour is not night, so the dwelling route fails. No one was injured or threatened, so the injury route fails, and D carried no weapon, so the armed route fails. No route is present, and the grade is the third degree.

Now change the building and omit the hour. D enters an apartment where a family lives, intending to steal, unarmed, and no one is hurt. The facts do not say what time it was. Burglary is established, and the dwelling-of-another half of the first route is met, but the night half cannot be shown from the facts. That route stays unproven, and on these facts the grade is the third degree. A stated nighttime hour would change the answer to the second degree.

The pair shows what the Code did with the facts that carried so much weight at common law. There the kind of building and the hour were elements of the offense, so an examinee had to address them just to reach liability.¹⁰ Under the Code those same facts go only to the grade. A commercial building, an unknown hour, or both can therefore never defeat the burglary, and they leave the grade at the third degree unless another route applies.¹¹ Students lose this issue when they fill the gap by assuming an hour the facts never supplied, because that assumption silently converts a third-degree burglary into a second-degree one. The safer answer states which route the facts leave unproven and which missing fact would establish it.

Grading Step by Step

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