Criminal trespass is defined by state and local laws, which vary by jurisdiction. However, criminal trespass is typically proven if the same statutory elements are met whether a home is occupied or unoccupied, as long as the home is habitable. If the home is unsuitable for residential use, it may not fall within the local definition of a trespass or it may be possible to raise the defense of abandonment. Laws vary by state, but in some states, criminal trespass of the first degree or aggravated criminal trespass may be punishable by imprisonment. Local laws should be consulted for specific requirements in your area.
The following is an example of a state jury instruction dealing with criminal trespass:
"If and only if you find defendant guilty of criminal trespass, you must also determine whether the State has proven beyond a reasonable doubt that the offense was committed:
1.) in a dwelling. A dwelling is any structure where individuals reside and sleep, or other structure that is dedicated to or intended for residential use. Furthermore, a structure is a dwelling, whether occupied, unoccupied, or vacant, so long as the State has proven beyond a reasonable doubt that it is suitable for residential use."