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Residential Entry, Consent, Intent

Understanding Residential Entry Charges and Defenses in Indiana

If you’ve recently been arrested on charges of residential entry in Indiana, it’s essential to understand the nature of the offense and the potential defenses available. This blog aims to provide a comprehensive overview of residential entry charges under Indiana law and discuss possible defenses that might be relevant to your case. 

What is Residential Entry? 


Under Indiana Code § 35-43-2-1.5, a person commits residential entry if they knowingly or intentionally break and enter the dwelling of another person. This offense is classified as a Level 6 felony. A Level 6 felony in Indiana carries a potential sentence ranging from six months to two and a half years, with an advisory sentence of one year. In some situations, a Level 6 felony can be entered as a Class A misdemeanor.  

Key Elements of Residential Entry 

To secure a conviction for residential entry, the prosecution must prove beyond a reasonable doubt that: 

  1. The defendant knowingly or intentionally.
  2. Broke and entered.
  3. The dwelling of another person. 

Each of these elements must be established for the charge to hold. The term "dwelling" refers to a place where someone lives, and "breaking" can involve even minimal force, such as opening an unlocked door. 

Potential Defenses to Residential Entry 

Various defenses can be employed in a residential entry case, depending on the specifics of the incident. Here are some common defenses: 

  1. Mistake of Fact
  2. Lack of Intent
  3. Consent 

Mistake of Fact Defense 

The mistake of fact defense asserts that the defendant had a reasonable belief that negated the intent required for the crime. In a residential entry case, this might mean the defendant genuinely believed they had permission to enter the dwelling. 

Case Example: 

In one Indiana case, an individual was charged with attempted residential entry after trying to enter what he believed was his sister’s townhouse. He testified that he was mistaken about the address due to intoxication. The trial court initially dismissed his mistake-of-fact defense, believing that intent was not required for the offense. However, the appellate court reversed this decision, stating that the trial court should have considered whether the defendant’s mistake was honest and reasonable. 

Lack of Intent 

For a residential entry charge, the prosecution must prove that the defendant intended to break and enter the dwelling. If the defendant can demonstrate that they had no such intent, it may serve as a defense. 

Example Scenario: 

If someone accidentally enters the wrong house, believing it to be their own or a friend’s, and there was no intent to commit an unlawful act, this lack of intent can be a strong defense. 


If the defendant had permission from the homeowner or resident to enter the dwelling, this can be a complete defense to a residential entry charge. 

Example Scenario: 

A tenant invites a friend over but later forgets about it. When the friend arrives and lets themselves in, the tenant mistakenly calls the police, believing it to be a break-in. If the friend can prove they had consent to enter, they may be acquitted of residential entry. 

Legal Precedent: 

In Indiana, once a defendant successfully raises the defense of consent, the State has the burden of disproving the defense beyond a reasonable doubt. This principle was established in the case law, highlighting that the absence of explicit consent in the statute means it must be raised as a defense. 

Intoxication and Misperception 

While voluntary intoxication itself is not a defense to criminal charges, it can be relevant to the determination of intent. If intoxication leads to a genuine and reasonable mistake of fact, it may support a defense based on misperception. 

Case Example: 

In the same case mentioned earlier, the defendant was intoxicated and mistakenly tried to enter a townhouse he believed belonged to his sister. The appellate court noted that while intoxication itself is not a defense, it is relevant to determining whether the defendant made an honest mistake. The court emphasized that the mistake of fact resulting from the defendant’s misperception due to intoxication should be considered. 

Jury Instructions on Lesser Included Offenses 

In some cases, it might be appropriate to argue for jury instructions on lesser included offenses, such as criminal trespass. 

Case Example: 

In another Indiana case, the defendant was convicted of residential entry. However, the appellate court found that the trial court should have instructed the jury on the lesser included offense of criminal trespass due to a serious evidentiary dispute. This dispute involved whether the defendant broke into the dwelling or merely entered it. The appellate court reversed the conviction and remanded the case for retrial with appropriate jury instructions. 

Legal Representation 

If you are facing a residential entry charge, it is crucial to seek legal representation. A skilled attorney can assess the specifics of your case, identify potential defenses, and work to ensure your rights are protected throughout the legal process. 


Facing a residential entry charge can be daunting, but understanding the nature of the offense and the possible defenses can help you navigate your situation more effectively. Key defenses include mistake of fact, lack of intent, consent, and the relevance of intoxication-related misperception. Consulting with a knowledgeable attorney is the best way to explore these defenses and mount a robust legal strategy. 



Laws and court interpretations can change. This blog provides general information and should not be considered legal advice. For current and case-specific advice, contact an attorney.