Burglary typically involves two parts: an unlawful entry into a structure and intent to commit a crime inside. The related crime of trespass involves only the first element—the unlawful entry.
In Kentucky, a person commits burglary by knowingly entering or remaining unlawfully in a building intending to commit a crime inside.
Building. The definition of building is much broader than its everyday meaning. Kentucky statute (law) defines it to include any structure, vehicle, watercraft, or aircraft where a person resides or where people assemble for business or other activities. Under this definition, a person can burglarize a house, office building, place of worship, school, RV, or houseboat, among other places.
The first element of burglary can occur in one of two ways: entering unlawfully or remaining unlawfully.
Enter unlawfully. For an unlawful entry, a person doesn't need to physically break into a structure. It's enough to push open an ajar door or lift an unlocked window to be considered an "entry." The key is that the entry must be unlawful. Pushing open a partially opened door to grab someone's purse is an unlawful entry. Pushing the door open to check on someone yelling for help would not be. (Violating a court stay-away order can also constitute an unlawful entry.)
Remain unlawfully. A person can also commit burglary by remaining unlawfully in a building. Say a party host asks everyone to leave, but one of the guests hides in a closet intending to assault the party host. The guest's initial entry into the home was lawful but turned unlawful once the host personally communicated to everyone to leave and the guest didn't comply.
The law provides that a person who does any of the following remains unlawfully:
The second element of burglary concerns the defendant’s state of mind at the time of entering or remaining in the building. To be convicted of burglary, the defendant must have decided to commit a crime before or upon entering the building unlawfully or while remaining unlawfully.
Typically, a prosecutor will need to prove the defendant's intent by using circumstantial evidence (unless the defendant confesses to having illicit intent). A person who enters a store through a back alley at night with tools, flashlights, and bags likely intends to steal. An angry ex-girlfriend who sneaks into her exes' apartment, through an unlocked window, carrying a bat likely has intent to assault the ex.
Kentucky divides burglary offenses into three degrees depending on the severity of the crime.
Burglary is a Class B felony if the defendant:
A person convicted of a Class B felony faces ten to 20 years in prison.
Second-degree burglary involves burglarizing a dwelling (a place usually used for lodging, such as a house, apartment, RV, dorm, or houseboat). The crime is second-degree burglary whether or not the dwelling is occupied at the time of the offense. A Class C felony carries a prison sentence of five to ten years' imprisonment.
Third-degree burglary covers any burglary that isn’t a first- or second-degree burglary. The offense is a Class D felony, punishable by one to five years' imprisonment.
A person who possesses any tool adapted, designed, or commonly used to forcibly enter into premises or physically steal something commits a Class A misdemeanor. A Class A misdemeanor carries a sentence of 90 days to one year in jail.
The prosecutor must establish that the circumstances under which the person possessed the tool leave no reasonable doubt that it was intended to facilitate burglary or theft. So, if a person keeps a crowbar in a back shed, that alone would not show the person intended to use it to break into a house. But, say the person is caught using a crowbar to forcibly break into the store of his ex-employer after being fired. These circumstances would likely show he possessed the crowbar intending to burglarize the store (and could lead to attempted burglary charges here as well).
(Ky. Rev. Stat. §§ 511.010 and following (2020).)
A person commits criminal trespass by entering or remaining on a property without permission but not intending to commit a crime.
Trespass can occur in a building (as defined under burglary) or upon any real property, which includes land or any structure regardless of its use. For land with no improvements on it, there’s no trespass unless the area is fenced or has posted warnings.
An example of trespass includes hopping a locked fence to get onto someone’s land. Notice that unlike burglary, for trespass, you don't need to intend to do anything illegal on the property (other than entering without permission) in order to be convicted of trespassing.
As with burglary, there are several degrees of criminal trespass. The penalties depend on the type of premises trespassed upon.
First-degree criminal trespass is a Class A misdemeanor and involves trespassing in a dwelling. A person also commits a Class A misdemeanor by entering a domestic violence shelter while subject to an order of protection. A person convicted of a Class A misdemeanor faces 90 days to one year in jail and a fine up to $500.
Second-degree criminal trespass is a Class B misdemeanor and includes trespassing into a building or onto other real property where notice against trespass has been given by fencing or other enclosure. A Class B misdemeanor carries up to 90 days' jail time and a fine up to $250.
Third-degree criminal trespass is a violation and includes any trespass not included above. Violations are fine-only offenses (no jail time possible) and punishable by up to a $250 fine.
(Ky. Rev. Stat. §§ 511.010 and following, 532.090, 534.040 (2020).)
If you have been charged with burglary, criminal trespass, or a related crime, or if you have questions about Kentucky laws, consult a qualified local criminal defense attorney. An attorney can review the unique facts of your situation and advise you on how the law will apply to your case.