Whether the intent element of home invasion may be proved in two separate ways, which must be indicted separately; whether home invasion may be accomplished by an instrument, such as a weapon.

The defendant frequently bought drugs from the victim’s apartment. One evening, after the victim opened his door to speak with the defendant, a third man rushed toward the door holding a gun. The victim attempted to slam the door, but the defendant put his foot in the door, preventing it from closing. The third man stuck the gun through the crack, firing a bullet into the apartment. There was some dialogue between the defendant and the third man. The victim was finally able to push the door closed, and the defendant and third man retreated.

The victim called the police, and the defendant was indicted for armed home invasion. In particular, the indictment charged that the defendant “knowingly entered [a] dwelling place … and remained … knowing or having reason to know that one or more persons were present within while armed.” The judge instructed that the Commonwealth must prove “that the defendant … knew or had reason to know one or more persons were present within the dwelling house when entering. Or, alternatively, that the defendant … remained in the dwelling house when he knew or had reason to know that one or more persons were present.”

A jury convicted, the defendant appealed, and the Appeals Court sustained the conviction. 75 Mass. App. Ct. 196. The SJC granted further appellate review, limited to the issues described below.

1. Two kinds of intent in home invasion. The defendant argues that there are two separate ways to commit home invasion: by its terms, the statute, G.L. c. 285, § 18C, “applies either to entry while one knows or has reason to know that one or more persons are present within or to entry without such knowledge but then remaining in the dwelling place after acquiring or having reason to acquire such knowledge.” Commonwealth v. Ruiz, 426 Mass. 391, 392-393 (1998). He argues that he was indicted for the second form only, while the evidence supported the first form only, and therefore the jury instructions and conviction were improper in various ways. The Appeals Court held that the two methods described in Ruiz were alternate ways of proving a single element, and that the language of the indictment encompassed both, so the conviction was valid.
2. Home invasion with an instrument. The judge instructed that home invasion could be committed with an instrument — the firearm. The home invasion statute does not define “entr[y],” and the question of what object must enter was explicitly left open in Commonwealth v. Stokes, 440 Mass. 741, 749 n.9 (2004). The defendant argues that the rule of lenity requires that the statute be interpreted to apply only to entry by a person, and that any unfavorable decision cannot be applied to his case. The Appeals Court held that, where entry can be accomplished by an instrument in burglary, see Commonwealth v. Cotto, 52 Mass. App. Ct. 225, 229 (2001), it can also be accomplished by an instrument in home invasion.

As to the first argument, the Appeals Court seems to have the better side — the indictment failed only if it implicitly claimed that the defendant did not know that the dwelling was occupied when he entered, and it is difficult to see why the Court would imply such a term. (The Court did read that term into the statute itself in Ruiz, but only to avoid rendering part of the statute excess verbiage.)

As to the second argument, the reasoning of Stokes seems to support the Appeals Court’s decision to import Cotto from burglary to home invasion. However, Cotto’s reasoning depended partly on issues specific to burglary; it may be that the Court accepted this petition in order to more fully explore the application of Cotto to home invasion, where the Appeals Court dealt with the analogy only briefly.