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).)
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").
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).)
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.
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.
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).)
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).
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).)
A person commits criminal trespass by entering onto property without permission from the owner. Criminal trespass occurs when a person:
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:
(Ind. Code Ann. §§ 35-43-2-2; 35-50-2-4 to-7; 35-50-3-2 (2020).)
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.