Each state has its own laws defining burglary, home invasion (the burglary of a dwelling), and trespass. And penalties vary according to the circumstances of the crime, as described below.
In Tennessee, burglary is defined as unlawfully entering or remaining in a structure with the intent to commit a felony, theft, or assault therein. Home invasion is a specific kind of burglary that occurs within a dwelling, and is discussed more below under "Aggravated burglary" and "Especially aggravated burglary").
The two parts of the definition—unlawful entry and intent to commit a felony, theft, or assault inside— are known as the “elements” of the crime, and to be convicted of burglary, both elements of the crime must be proved beyond a reasonable doubt (or admitted to by the defendant). That is, the prosecutor must prove that the defendant actually entered (or remained in) the building, and entered (or remained) with the intent to commit a felony, theft, or assault inside. 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.
And notice too that the intended crime (such as theft from the building) need not be completed; proof of entry and of the intent to commit a crime inside are the only requirements for a conviction.
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, theft, or assault, and then entered the building (or stayed beyond the permitted time) for that purpose.
It is a Class A misdemeanor to possess any implement designed or commonly used for burglary, with the intent to use the tool for that purpose, or to allow someone else to use it for a burglary. Examples of burglar’s tools include dynamite, torches, and other explosive devices. (Tenn. Code Ann. § 39-14-701.) You can read more about burglar's tools in Burglary Tools.
Burglary is broken into three categories, with prison terms increasing according to the circumstances of the crime.
Burglary is a Class D felony, and occurs when a defendant unlawfully enters or remains in a public or private building (but not a habitation) with the intent to commit a felony, theft, or assault. However, the crime is a Class E felony if the structure was a train car, automobile, boat, airplane, or other motor vehicle. (Tenn. Code Ann. § 39-14-402.)
Aggravated burglary (also called "home invasion") is a Class C felony, and occurs when a defendant unlawfully enters or remains in a habitation (any structure designed or adapted for overnight dwelling) with the intent to commit a felony, theft, or assault therein. (Tenn. Code Ann. § 39-14-403.)
Especially aggravated burglary is a Class B felony, and occurs when a defendant unlawfully enters or remains in a habitation or other building (public or private) with the intent to commit a felony, theft, or assault therein; andthe crime results in any person lawfully on the premises suffering serious bodily injury. (Tenn. Code Ann. § 39-14-404.)
Similar to burglary, criminal trespass is defined as knowingly entering onto (or remaining on) private property without the consent of the owner. The property may include land or a building or other structure.
The difference between trespass and burglary is that trespass does not have the element of entering with the intent to commit a crime (the second element of burglary), explained above. Instead, merely entering without consent qualifies as trespass.
Consent may be direct (an owner saying “you may enter my property”), or inferred on property that is used for commercial purposes open to the general public, or when the owner has made it clear (such as with conspicuously-posted signs)that the property is open to the general public.
Criminal trespass is a Class C misdemeanor, which incurs up to 30 days in jail, a fine of up to $50 or both. (Tenn. Code Ann. § 39-14-405.)
Aggravated criminal trespass is a similar but more serious crime, and occurs when a defendant enters or remains on property without the owner's consent, and either the defendant knew (or should have known) that such entry would cause another person to fear for that person’s safety, or the defendant gained entry by destroying or altering a gate or other barrier to entry designed to keep trespassers from entering the property.
Aggravated criminal trespass is a Class B misdemeanor which incurs up to six months in jail, a fine of up to $500 or both. However, aggravated criminal trespass that occurred in a habitation, a hospital building, on school property, or (under certain specified circumstances) on railroad property is a Class A misdemeanor.(Tenn. Code Ann. § 39-14-406.)
If you have been charged with burglary, criminal trespass, or a related crime, or if you have questions about state 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.