Burglary Defense

KENTUCKY LAW ON BURGLARY

In Kentucky, Burglary occurs when a person enters or remains in a building unlawfully – and while entering the building, the person intended to commit a crime inside the building. The basic description of Burglary is found in KRS §511.030, which defines Burglary in the second degree.

DEGREES OF BURGLARY

The default charge for Burglary is Burglary in the second degree, as defined in KRS §511.030. Burglary may be charged in one of three degrees, and the default may be enhanced to Burglary in the first degree. A person may also be convicted of any lesser included offenses to of Burglary in the second degree, including Burglary in the third degree.
Burglary in the first degree occurs when a person, intending to commit a crime inside of a building, enters or remains in that building unlawfully. Additionally, either the defendant or another participant, is armed with explosives or a deadly weapon, causes physical injury to any person who is not a participant, or uses or threatens to use a dangerous instrument against a person who is not participating in the crime.
Burglary in the second degree occurs when a person enters or remains in a dwelling unlawfully within intent to commit a crime therein. Burglary in the third degree is the same as second degree, except that the person must only enter a building, not a dwelling.
There are also other crimes that do not arise to the level of burglary in the third degree. They are related crime, but not necessarily lesser included offenses:
Possession of a burglar’s tools under KRS §511.050
Criminal trespass under KRS §511.060, 511.070, and 511.080
Domestic violence shelter trespass under KRS §511.085, and
Trespass upon key infrastructure assets under KRS §511.100

PENALTY FOR BURLARY IN KENTUCKY

Burglary in the first degree is a Class B felony and is therefore punishable by between 10- and 20-years’ incarceration. If the burglary occurs during a declared emergency and within the area impacted by the disaster, then it is a Class A felony and is therefore punishable by between 20- and 50-years’ or life incarceration.
Burglary in the second degree is a Class C felony and is therefore punishable by between five- and ten-years’ incarceration. If the offense occurs during a declared emergency, the crime can be enhanced to a Class B felony, punishable by 10- and 20-years’ incarceration.
Burglary in the third degree is a Class D felony and is therefore punishable by between one- and five-years’ incarceration. If the offense occurs during a declared emergency, the crime can be enhanced to a Class C felony, punishable by 10- and 20-years’ incarceration.

WHAT MUST BE PROVEN TO BE CONVICTED

Three elements main elements must be proven for a conviction of burglary: (1) that the defendant intended to commit a crime at the time of trespassing; (2) the type of premises as defined by the relevant degree of burglary, e.g., building versus dwelling; and that (3) the defendant is the one that committed the offense. If there is not sufficient proof of one or part of one of these main elements, or an element of the crime as defined by the statute, then a person may still be convicted of a lesser included offense such as Possession of a burglar’s tools.

DEFINITIONS

Definitions for burglary and related crimes are found in Kentucky Revised Statutes Section 511.010.
The word “building” has its ordinary meaning. It also means any structure, vehicle, watercraft, or aircraft where a person lives or where people assemble for business, government, education, religion, entertainment, or public transportation.
The word “dwelling” means a building that is typically occupied by a person lodging in that building.
The word “premises” means “building” plus any real property.

BURGLARY AS SEEN THROUGH CASE LAW

Caselaw helps to clarify some issues that arise when reading or interpreting the statutes. For example, criminal conduct does not become burglary just because it was committed on another person’s property because the intention to commit the crime at the time of entering the property must be proven for a person to be convicted of burglary. Hedges v. Com., 937 S.W.2d 703 (Ky. 1996).
In order to be convicted of burglary, a person must have entered or remained on the property without authorization by law (such as entering or remaining in a place designated for public use) or by the owner of a home or dwelling (such as being invited inside). The person must also have intended to commit the crime at the same time as the trespass occurred. So, if the defendant was invited inside a home and then started destroying property inside the home, but then stopped destroying the property whenever permission to be inside the home was revoked, then there was no burglary. Hedges v. Com., 937 S.W.2d 703 (Ky. 1996). Thus, the defendant must have intended to commit the crime before, even if only moments before, having entered or remained on the premises after having been told to leave in order to have committed burglary. Knipp v. Com., 2005 WL 387276 (Ky. 2005).
The only difference between trespass in the first degree and burglary in the second degree is that in the latter, the defendant must have acted with intent to commit a crime. Com. v. Sanders, 685 S.W.2d 557 (Ky. 1985). Violation of a domestic violence emergency protective order (DVO) does not itself qualify as a crime for burglary purposes. Hedges v. Com., 937 S.W.2d 703 (Ky. 1996). The same is true for fleeing and evading the police. Johnson v. Com., 2013 WL 2297105 (Ky. 2013). Thus, if a person lawfully enters a premises while intending to commit a crime once there, then there is no burglary. Fletcher v. Com., 59 S.W.3d 920 (Ky. App. 2001).
The phrase “inhabited building” means a building in which one or more people, other than the burglar is present at the time of the burglary. Litton v. Com., 597 S.W.2d 616 (Ky. 1980). For the purposes of burglary in the second degree, which requires that the person unlawfully enter and remain in a dwelling, the word dwelling is broad, not just including a house or apartment. For example, even though the owner-occupant had recently died, a trailer home was considered a dwelling in Cochran v. Com., 114 S.W.3d 837 (Ky. 2003). On the other hand, if a building was destroyed and is schedule for demolition, rendering it uninhabitable, then it is not considered a dwelling for the purposes of burglary in the second degree.