Each state has its own laws defining burglary, attempted burglary, home invasion (the burglary of a dwelling), and trespass. And penalties vary according to the circumstances of the crime, as described below.
In Kentucky, burglary is defined as knowingly entering into a building, structure, or other real property without the authority to do so (or remaining on property after your privilege to be there has ended), and with the intent of committing any crime therein.
To be convicted of burglary, both elements of the crime must be proved beyond a doubt (or admitted to by the defendant). That is, the prosecutor must prove that the defendant actually entered the building, and entered with the intent to commit a felony assault or theft. Without sufficient proof of each element, the prosecutor may secure a conviction for some other crime (such as trespass or attempted burglary), but not burglary.
The first element of the crime of burglary—entering—may be accomplished in two ways: by breaking into or entering property that you don’t have permission to enter in the first place, or by remaining on property after the time you are permitted to be there has expired.
An example of the second scenario includes legally entering a department store during business hours, but then hiding when the store closes to the public in order to steal merchandise after hours.
The second element of burglary concerns the defendant’s state of mind at the time he or she entered the building. To be convicted of burglary, the defendant must have decided to commit a felony or theft, and then entered the building (or stayed beyond the permitted time) for that purpose.
In Kentucky, home invasion is not a separate law from burglary, but rather a specific name for a burglary that occurs in the home. Home invasion has the same entry and criminal intent elements, and is punished as a burglary, according to the underlying circumstances of the crime (as described below).
There are three categories, or “degrees” of burglary in Kentucky, listed here according to the severity of the underlying circumstances. The applicable penalties also vary according to severity of the crime.
First degree burglary is a class B felony, and includes knowingly entering or remaining unlawfully in a building (any structure, vehicle, water- or aircraft) with the intent to commit a crime there; and while doing so (or during the immediate flight from the crime) the defendant possessed an explosive or deadly weapon, caused physical injury to another person, or used (or threatened) to use a dangerous instrument against another person. (Ky. Rev. Stat. Ann. § 511.020.)
Second degree burglary is a class C felony, and includes knowingly entering or remaining unlawfully in a dwelling (a place used for lodging, such as a house or apartment). (Ky. Rev. Stat. Ann. § 511.030.)
Third degree burglary is a class D felony, and includes knowingly entering or remaining unlawfully in a building not included in first or second degree burglary. (Ky. Rev. Stat. Ann. § 511.040.)
Trespass requires that a defendant knowingly entered onto some property without the authority to do so. And because trespass occurs on someone else’s “property,” which can include land, this offense is broader than burglary, which occurs upon entry into a building.
An example of trespass includes hopping a locked fence to get onto someone’s land. Notice that unlike burglary, trespass does not have the intent element explained above (the second element of burglary). In other words, you do not need to intend to do anything illegal on the property (other than entering without permission) in order to be convicted of trespassing.
However, merely entering onto or remaining on seemingly unused unimproved land that is not fenced or otherwise enclosed is not criminal trespass unless notice is personally communicated by the landowner or some other authorized person (for example, by a security guard), or posted conspicuously on a sign. (Ky. Rev. Stat. Ann. § 11.090.)
As with burglary, there are several degrees of criminal trespass.
First degree criminal trespass is a class A misdemeanor, and includes knowingly entering or remaining unlawfully in a dwelling. (Ky. Rev. Stat. Ann. § 11.060.)
Second degree criminal trespass is a class B misdemeanor, and includes knowingly entering or remaining unlawfully into a building or onto other real property where notice against trespass has been given by fencing or other enclosure. (Ky. Rev. Stat. Ann. § 11.070.)
Third degree criminal trespass is a misdemeanor violation, and includes knowingly entering or remaining unlawfully in a building or other real property not included above. (Ky. Rev. Stat. Ann. § 11.080.)
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. Only an attorney can review the unique facts of your situation, and advise you on how the law will apply to your case.