Trespass could be generally summarized as entering or remaining on property without permission. Trespass may be a lesser included charge for burglary, meaning it may be a prosecutor’s fall back if a burglary charged fails. Therefore, it could be seen in the burglary context if a prosecutor is hedging his or her bets, or it may appear as a charge in place of burglary where the prosecution is unsure whether they can prove all the elements of burglary, intent in particular. Throughout the various elements defining the 3 degrees of criminal trespass, the crime is interconnected with the elements of burglary, such that criminal trespass becomes a sort of catch-all for facts and evidence that do not fit the elements of the other crime. This does not mean a person cannot be accused of criminal trespass in a case that looks nothing like a burglary. It does show, however, that in cases where either burglary or criminal trespass is charged, a thorough knowledge and consideration of the elements of the other crime is also required.

First Degree Criminal Trespass 

First Degree Criminal Trespass is classified as a class 5 felony. In order to prove the first degree, the prosecution must persuade the jury beyond a reasonable doubt that the accused entered or remained in a dwelling of another. They must also prove that the accused knew they were entering or remaining in a dwelling of another and they must prove it was unlawful for the accused to be there. Alternatively, proving the accused entered a motor vehicle with intent to commit a crime inside the motor vehicle will also result in a conviction for First Degree Criminal Trespass. – C.R.S. § 18-4-502. This statute covers both entry into a dwelling without intent to commit any additional crime, and entry into a vehicle with intent to commit an additional crime. We can see in the dwelling element that entry into some other building that is not a home would not meet the elements here, and would likely fall under the elements of criminal trespass in the second or third degree. Entry into a dwelling with intent to commit an additional crime would fit burglary.

Entry into a vehicle for purposes of this statute has been found by Colorado courts to include entry to a trailer in one instance and entry to the open portion of a pickup truck in another. The intent to commit another crime in the vehicle reflects a requirement common to burglary statutes, with the difference between trespass and burglary being that the property entered is a motor vehicle and not a structure. Colorado courts have also interpreted this statute to mean that entry to a dwelling must be intentionally, or knowingly, unlawful. Entry to a vehicle need not be, provided there is intent to commit a crime in the vehicle.

Second Degree Criminal Trespass

Criminal trespass in the second degree applies when a person unlawfully enters an area or structure that has been fenced off, or otherwise closed off to the general public. This also applies to knowingly entering or remaining in common hotel or apartment common areas. Finally, second degree criminal trespass could apply if the accused unlawfully entered or remained in a motor vehicle, but they must have done so knowingly.

Second Degree Criminal Trespass is generally charged as a class 3 misdemeanor. However, it may be charged as a class 2 misdemeanor if the trespass occurs on agricultural land, and a class 4 felony if the trespass occurs on agricultural land with intent to commit another felony on the property.

Third Degree Criminal Trespass

This one is the final catch-all with regard to dwelling, structure, or just premises. Third degree simply requires trespass on a premises, rather than a dwelling, closed off area, or motor vehicle. The definition of premises will therefore be important in these cases. Although this is typically charged as a petty offense, it may be a class 3 misdemeanor if the trespass is on agricultural land, or a class 5 felony if the trespass is on agricultural land and there is intent to commit another felony on the property.

The explanations provided above are taken from the Colorado Revised Statutes covering the three degrees of criminal trespass. They can be found at C.R.S. § 18-4-502, 503, and 504 respectively.

As the explanations above make clear, the variations of criminal trespass really matter, and they can turn on minute points. Even in a case where the prosecution’s evidence seems airtight, the difference between a motor vehicle and a vehicle without a motor, or intent to commit another crime, or maybe even the timing of that intent, could mean the difference between whether an accused is facing a felony or a misdemeanor.

At Ready Law, we have experience defending criminal trespass cases. We understand that successfully defending these cases often requires careful investigation, thorough preparation, and consideration of evidence and facts the prosecution and law enforcement may have missed. If you are facing criminal trespass charges, or believe you may be soon, call our office to schedule a consultation.