IS CRIMINAL TRESPASS A LESSER INCLUDED OFFENSE OF BURGLARY?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

State v. Rush, 877 P.2d 386 (Kan. 1994).

This case addresses the following issue:

Is criminal trespass a lesser included offense of burglary?

This case explored the issue of whether criminal trespass was a lesser included offense of burglary. In exploring this issue, the court held that criminal trespass was not a lesser included offense of burglary. Id. at 387.

In this case, the police were dispatched to a burglary in progress at a local grocery store. Id. The store occupied the first floor of the building and unoccupied apartments were located on the second floor. Id. The only outside entrance to the apartments was located on the back of the building. Id. Upon arriving at the building, the police found the window screen pried up, pry marks on the front door (which lead into the grocery store), and the outside light broken. Id. However, the front entrance was secure. Id. The police then went to check the back of the building and found the back door kicked in. Id. After searching the second floor, the police found the defendant. Id. A doorway leading from the apartment to the store had been kicked and pried open; nevertheless, nothing had been taken from the store and nothing was found on the defendant except his personal belongings. Id. At trial, the defendant testified that he was unemployed, homeless, and cold that night. Id. Additionally, the defendant stated he had slept in the building the night before and that the door was open both nights. Id. Further, the defendant said that he only intended to sleep in the apartment, he did not intend to take anything. Id. Despite the defendant’s testimony, he was charged with and convicted of burglary. Id. Additionally, the trial court denied his request for a jury instruction on criminal trespass. Id.

On appeal, the defendant argued that criminal trespass was a lesser included offense of burglary and the trial court should have given a jury instruction on criminal trespass. Id. The reason the defendant wanted an instruction on criminal trespass was because the jury could have potentially found him guilty of that instead of burglary and a lesser punishment would have resulted.

In responding to the defendant’s argument, the Supreme Court of Kansas first identified the test used to determine whether a particular offense was a lesser included offense. Id. According to that test, the court first needed to determine whether all the statutory elements of the alleged lesser included offense are required to prove the greater crime charged. Id. at 387-88. Second, the court needed to examine if proof of the crime charged also proved a lesser crime. Id. at 388. With this knowledge, the court then examined the criminal trespass statute. Id. According to the statute, criminal trespass required proof or something more than a knowing and unauthorized entry or remaining within property. Id. Criminal trespass required proof of actual or constructive notice (has notice or assumed to have notice). Id. Since this actual and constructive notice was not located in the burglary statute, the trial court did not have a duty under Kansas law to instruct the jury on criminal trespass because criminal trespass was not a lesser included offense of burglary. Id. at 390.