Indiana's Laws on Burglary, Residential Entry, and Criminal Trespass

The crimes of burglary, residential entry, and criminal trespass all involve unauthorized entry onto another's property but can be distinguished by their other elements (or parts of the crime).

Burglary constitutes the most serious offense because it involves the additional intent to commit a crime after the unauthorized entry. Residential entry and criminal trespass don't involve this additional intent and, as a result, carry less severe penalties.

Penalties for burglary, residential entry, and criminal trespass increase when the crime involves a home or "dwelling," weapons, or physical injury. The definition of "dwelling" in Indiana is broader than it might sound. It includes the typical family home or apartment but also any structure or enclosed space that is a person's home or place of lodging. The structure can be permanent, temporary, movable, or fixed. So a person's dorm room, RV, tent, or houseboat can also be considered a dwelling. It's not necessary for the dwelling to be occupied at the time of the offense. (Ind. Code Ann. § 35-31.5-2-107 (2020).)

Burglary in Indiana

Traditionally, burglary was defined as breaking and entering into a home at night with the intent to commit a felony inside. Many states have done away with these requirements, but Indiana retains some of the traditional elements, such as the requirement of "breaking and entering."

Under Indiana's law, a person who "breaks and enters" a building or structure, intending to commit a felony or theft inside, commits a burglary. Burglary is a level 5 felony unless the crime involves additional circumstances, such as entering a dwelling, being armed, or causing physical injury (discussed below in "Penalties for Burglary").

What Does It Mean to "Break and Enter"?

Despite how it sounds, "breaking and entering" does not require an actual breaking of property, like a door, window, or lock. A person breaks and enters by using even the slightest bit of force to gain entry into a building without permission. For example, opening an unlocked door, raising an unlocked window, or fully pushing open a door left ajar constitutes a "breaking" under Indiana law.

Likewise, an "entry" for burglary purposes does not require that a defendant's entire body be physically inside the property. A person "enters" by putting oneself in a position to commit a felony or theft. This position can be reaching into a window to grab something (like a wallet) or aiming a gun through a door at its occupants. (Penman v. State, 325 N.E.2d 478 (Ind. Ct. App. 1975).)

Intent to Commit a Crime

In order to convict a person of burglary, the prosecutor must prove that the defendant entered into the building intending to commit a crime inside. Because defendants don't always announce their criminal intentions, how do prosecutors show what they were thinking? Usually, the defendant's illicit intention can be determined by the circumstances. For example, a juror could find beyond a reasonable doubt that a man who is found in an office building, having pried open the door and rifled through cabinets and drawers, entered the building with criminal intent to commit a theft. The crime of burglary occurs even if the intended felony or theft never occurs, so long as the defendant entered the building with the illicit intent.

Penalties for Burglary

Here are the various offense levels for burglary in Indiana. As mentioned above, the penalties increase when the crime involves a dwelling (residence), weapon, or physical injury.

• Building or structure. Burglary of a building or structure is a level 5 felony and carries a sentence of one to six years in prison.
• Dwelling. Burglary of a dwelling is a level 4 felony and carries a sentence of two to 12 years in prison.
• Bodily injury. Burglary that results in bodily injury to another is a level 3 felony and carries a sentence of three to 16 years in prison.
• Armed or serious injury. Burglary committed while armed with a deadly weapon or that results in serious bodily injury to another is a level 2 felony and carries a sentence of 10 to 30 years in prison.
• Dwelling and serious injury. Burglary of a dwelling that results in serious bodily injury to another is a level 1 felony and carries a sentence of 20 to 40 years in prison.

In addition to prison time, all felonies in Indiana are punishable by a fine up to $10,000.

(Ind. Code Ann. §§ 35-43-2-1; 35-50-2-4 to -7 (2020).)

Residential Entry and Criminal Trespass

The crimes of residential entry and criminal trespass involve an unlawful entry onto another's property but can be distinguished from burglary in that they do not involve intent to commit an additional crime (such as theft or assault).

Residential Entry

A person who breaks and enters into a dwelling commits a level 6 felony offense, which is punishable by a sentence of six months to two and a half years' imprisonment. Under certain circumstances, a level 6 felony can be reduced to a class A misdemeanor. A defendant can only qualify for this alternative misdemeanor sentence once and must be conviction-free for three years. (Ind. Code Ann. §§ 35-38-1-1.5; 35-43-2-1.5; 35-50-2-7 (2020).)

Criminal Trespass

A person commits criminal trespass by entering onto property without permission from the owner. Criminal trespass occurs when a person:

• enters onto another person's property after having been told not to do so (this includes property on which "No Trespassing" signs or purple marks are posted)
• refuses to leave someone else's property after being asked to do so
• accompanies another person in a vehicle knowing that person does not have permission to control the vehicle (such as a person who rides along in a car he knows is stolen)
• interferes with another person's use or possession of property without permission (such as by putting up a fence on a neighbor's land)
• enters a residence or agricultural operation without the owner's consent (no "breaking into" involved)
• travels by train without the railroad company's permission, or
• enters or refuses to leave property that is vacant or abandoned after being asked to leave by a police officer, pursuant to a court order, or when conspicuous signs have been posted.

Criminal trespass is a class A misdemeanor and carries up to a year in jail and a $5,000 fine. The penalty increases to a level 6 felony (penalty listed above), if the person:

• has a prior conviction for trespassing on the same property
• trespasses on a scientific research facility, public utility, or school property (including a school bus), or
• enters an agricultural operation without permission and cause more than $750 in property damages. Causing more than $50,000 in damages results in a level 5 felony, punishable by one to six years in prison and a $10,000 fine.

(Ind. Code Ann. §§ 35-43-2-2; 35-50-2-4 to-7; 35-50-3-2 (2020).)

Obtaining Legal Assistance

If you are charged with burglary, residential entry, or criminal trespass in Indiana, speak with a local criminal defense attorney right away. An attorney can explain the charges to you and tell you how to protect your rights so that you can obtain the best possible outcome in your case. Be sure to ask your attorney about the immediate and future consequences of a conviction. A criminal record can impact your ability to get a job, housing, or loan in the future.