Burglary charges are often misunderstood. Under Indiana law, burglary happens when someone unlawfully enters a building or other structure to commit a crime. Importantly, the severity of burglary charges can vary depending on the structure type and what happened to the occupants, if any.
Defendants must understand the elements of the burglary charges brought against them to build a strong criminal defense. A burglary lawyer from Gemma & Karimi helps clients understand their charges and tailors a defense to fit their unique circumstances.
Learn how Indiana distinguishes the levels of burglary charges and how to defend against them.
How Prosecutors Determine Which Level of Burglary to Charge in Indiana
Many states have different degrees of burglary. The statutory factors that distinguish between the offense levels vary significantly from state to state.
Indiana, by contrast, only has a single burglary offense. In other words, your Indiana court documents will not use terms like “first-degree burglary,” “second-degree burglary,” and “third-degree burglary.” Instead, they will state that you have been charged with burglary and identify the offense level that prosecutors are pursuing.
Under Indiana’s burglary statute, prosecutors must answer the following questions to determine the burglary offense level for your charges:
- Was the structure a dwelling?
- Was anyone injured and, if so, how severe was the injury?
- Were you armed with a deadly weapon?
Under Indiana law, prosecutors can charge the following offense levels based on the facts of your case:
- Burglary without any aggravating factors is a level 5 felony
- Burglary of a dwelling is a level 4 felony
- Burglary that results in bodily injury to anyone other than the defendant is a level 3 felony
- Burglary while armed with a deadly weapon is a level 2 felony
- Burglary that results in serious bodily injury is also a level 2 felony
- Burglary of a dwelling that results in serious bodily injury is a level 1 felony
Level 1 felonies are the most severe offenses other than murder. Level 5 felony offenses are the second-lowest felony offenses you can face in Indiana. The difference in state prison sentences between level 1 and level 5 felony burglary convictions could be 20 years or longer.
There is no one-to-one correlation between Indiana’s offense levels and the burglary degrees used in other states. Thus, it can be difficult to determine the answer to “What is first-degree burglary in Indiana?”
A level 1 felony burglary would be encompassed in what other states might classify as first-degree burglary. However, there is no way to know if a level 2, 3, or 4 felony burglary would be classified by other states as first-degree burglary vs. second-degree burglary vs. third-degree burglary.
Moreover, the answers to “What is 2nd degree burglary?” and “What is 3rd degree burglary?” will differ by state.
While it would be reasonable to assume that simple burglary is the lowest degree of burglary in other states, the penalty imposed in other states for third-degree burglary does not necessarily correspond to Indiana’s punishment for a level 5 felony conviction.
Rather than focusing on how Indiana’s felony levels correspond to other states’ burglary degrees, it may be more useful to focus on the aggravating factors that increase the punishment for the types of burglary charges used in Indiana.
Why Entering a Residence Elevates the Risk of First-Degree Charges
Indiana’s burglary statute covers buildings and structures. These terms include more than homes. They can also cover anything that creates an enclosed space, such as garden sheds, shops, and storage units.
Although some states explicitly include temporary structures, Indiana’s law is ambiguous. However, the prosecution will likely consider burglary charges even when the structure is temporary, such as a kiosk, tent, or pop-up store.
Assuming there are no other aggravating factors, breaking and entering involving a non-dwelling structure, such as an office building, is a level 5 felony. The offense jumps to a level 4 felony when the building or structure is a dwelling.
Indiana does not define “dwelling” in its criminal statutes. However, the plain and ordinary meaning of dwelling is any place tailored for human habitation. Thus, a dog house is not a dwelling because it is not meant for humans. Instead, the term is meant to cover homes, apartments, and other habitable buildings.
Moreover, dwellings are not limited to fixed structures. A mobile home, RV, or tent could be deemed a dwelling. However, Indiana does not consider vehicles not meant for habitation to be structures. Thus, you cannot commit a burglary of a vehicle in Indiana.
Instead, the state has a special offense called unlawful entry of a motor vehicle. This charge is a “wobbler” offense that can be charged as a misdemeanor or a felony. However, generally, burglary of a dwelling is a much more severe offense than unlawful entry into a motor vehicle.
Importantly, Indiana’s level 4 burglary felony charges apply to all dwellings, not just inhabited ones. Thus, residential burglary, whether the dwelling was a vacant or an occupied structure, can be charged at least at the level 4 felony level.
The offense level for a residential burglary can jump to a level 1 felony if anyone other than the accused suffers any injury.
The charge level increases to a level 3 felony if anyone other than the accused suffers a bodily injury, regardless of where the burglary allegedly occurred. A bodily injury occurs when the accused inflicts any physical impairment or pain. Thus, a minor bruise qualifies as a bodily injury.
The charge increases to a level 2 felony if anyone suffers a serious bodily injury. The law defines serious bodily injury to include bodily injuries that cause any of the following:
- Extreme pain
- Unconsciousness
- Permanent or protracted loss or impairment of a body part
- Serious permanent disfigurement
- Loss of a fetus
- A substantial risk of death
The most severe burglary charge occurs when the alleged burglary occurred in a dwelling, and someone other than the accused suffered a serious bodily injury. Thus, committing a residential burglary fulfills one of the two aggravating factors that could result in the most severe burglary charge in Indiana.
How Commercial Establishments and Unoccupied Structures Are Handled by Burglary Laws
The characteristics of the building or structure allegedly burglarized will directly influence the charge level.
Commercial Burglary
Although some states classify residential burglary and commercial burglary differently, Indiana takes a unique approach. Analyzing commercial burglary charges does not hinge on whether the property was commercial. Instead, it depends on whether the property was a dwelling.
For example, an Airbnb is a commercial dwelling. Similarly, hotel rooms are commercial dwellings. The fact that they are commercial does not change their categorization as dwellings.
A burglary of any dwelling automatically starts at a level 4 felony charge. Burglaries of commercial properties will start at a level 5 felony charge. The same aggravating factors will apply.
If the accused burglarized a commercial building and committed a violent felony that injured a security guard, the accused could be charged with a level 3 or higher felony.
Burglary of Unoccupied Structures
Burglary of vacant structures is treated the same as burglary of occupied structures. Indiana law does not decide the offense level based on whether the building or structure was inhabited. However, the burglary of an inhabited structure significantly increases the risk of higher charges.
If anyone is in the structure or building, prosecutors may allege that they were injured and increase the charge level. Unfortunately, this logic does not work in the opposite direction. You cannot reduce your charges by arguing that the structure was unoccupied.
The Crucial Difference Between Simple Trespass and Intent to Commit a Crime in Burglary Cases
Burglary in Indiana has two primary elements. The first is an unlawful entry into a building or dwelling. The second is the intent to commit a crime.
This crime could involve a theft offense. However, theft is not a required element for burglary criminal charges in Indiana. Instead, any felony can result in a burglary charge. For example, an unlawful entry to commit stalking, sexual assault, or murder will likely trigger burglary charges.
Both trespass and burglary involve an unlawful entry. The difference between these offenses is the accused’s criminal intent.
If the accused only intended to enter the premises without permission or lawful authority, they may have committed a criminal trespass. However, if the accused intended to commit a felony or theft after entering, they arguably committed a burglary.
How Possessing Lockpicks or Other Burglary Tools Can Multiply Your Legal Troubles
Unlike some states, Indiana has no laws against the possession of burglary tools. However, the prosecution might use these tools as evidence of your intent. For example, if you are hanging around a storage facility after dark with lock picks and bolt cutters, prosecutors might infer that you intended to break into storage units.
The Compounding Consequences of a Felony Burglary Conviction on Your Record
Since Indiana does not have degrees for burglary, there are no separate first-degree burglary penalties, second-degree burglary penalties, or third-degree burglary penalties. Instead, the sentence for an Indiana burglary conviction depends on the offense level.
Under Indiana’s burglary sentencing laws, the ranges of potential penalties for level 1 through 5 felony burglaries are as follows:
- Level 1: 20–40 years in state prison
- Level 2: 10–30 years in state prison
- Level 3: 3–16 years in state prison
- Level 4: 2–12 years in state prison
- Level 5: 1–6 years in state prison
Additionally, burglary conviction consequences can include a fine of up to $10,000, regardless of the offense level.
Indiana does not have a three-strikes law. However, it does allow enhanced sentences for habitual offenders. This means that every felony conviction, including convictions for burglary, brings you closer to habitual offender sentencing, which can add up to 20 years to a felony sentence.
Common Defenses to Burglary Felony Charges: Why Challenging the Prosecution’s Evidence of Intent Is Often the Best Strategy
Burglary charges can often be beaten or reduced with a strong defense. Several defenses have a good chance to overcome burglary charges.
Permission
If you had permission to enter the house, your entry was lawful and, thus, not burglary. This defense may even apply when you make a reasonable mistake. You might avoid a burglary conviction if your friend gave you the wrong address when asking you to house-sit.
Mistaken Identity
You cannot be convicted of burglary if you never entered the property. Thus, you can use this defense if you were mistakenly identified based on blurry video footage.
Lack of Intent
The prosecution has the burden of proving guilt beyond a reasonable doubt. One defense is to challenge the prosecutor’s evidence of your criminal intent. You can argue that you entered the premises to do something other than commit a crime.
For example, suppose you entered an abandoned restaurant to take photos. You may have trespassed, but you probably did not commit burglary.
The Immediate Actions You Must Take to Protect Your Alibi and Rights
Your actions after an arrest could determine the strength of the prosecution’s case against you. Consider taking the following steps after an arrest:
- Remain silent
- Do not give permission to search your car or home
- Call a lawyer for legal assistance
- Do not speak to investigators before retaining legal counsel
Once you hire a lawyer, work together to create a list of witnesses who can support your alibi.
Contact Gemma & Karimi to Discuss Your Breaking and Entering Charges With an Experienced Criminal Defense Attorney
Burglary charges in Indiana can vary from a low-level felony to one of the most serious offenses in the books. Our attorneys have extensive experience defending those accused of burglaries of all offense levels. Contact us to learn how we can help you fight your burglary charges.
