[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 142 Defendant Arlie Wayne Adams appeals from his conviction by jury of one count of attempted aggravated burglary, in violation of R.C. 2923.02(A) and 2911.11(A)(3). We affirm.
Adams was charged with breaking and entering in violation of R.C. 2911.13(A) and attempted aggravated burglary in violation of R.C. 2923.02(A) and 2911.11(A)(3), involving the home of James and Kathleen Dick, located in North Ridgeville, Lorain County, Ohio. At the time of the alleged crimes, the house was in a state of disrepair due to smoke damage. Although the residents lived elsewhere for several weeks during the cleaning and repair, periodically James Dick would go to his home to survey the house and monitor the work.
On one such occasion, while at the house, Dick observed someone fleeing from a utility shed located on the property. Several days later, on another visit to the house, Dick witnessed two people attempting to enter the residence through a side window. After giving pursuit, Dick identified one of the intruders as the same person he had observed several days earlier trespassing on his property. The perpetrator in both instances was later identified by Dick as defendant Adams.
The jury acquitted Adams of the breaking and entering charge in connection with the utility shed, and found him guilty of the attempted aggravated burglary charge relating to the residence. Adams was accordingly sentenced and now presents three assignments of error on appeal.
Assignment of Error I "The trial court erred to the prejudice of appellant, when it denied appellant's request for an instruction on a lesser included offense."
Adams claims the trial court erred in failing to give an instruction on the lesser included offense of attempted breaking and entering on the attempted aggravated burglary charge. We disagree.
In State v. Kidder (1987), 32 Ohio St. 3d 279, 513 N.E.2d 311, the Supreme Court of Ohio set forth a two-prong test to determine whether an instruction on a lesser included offense is warranted pursuant to Crim.R. 31(C) and R.C. 2945.74, as follows: *Page 143
"Thus the trial court's task is two fold: first, it must determine what constitutes a lesser included offense of the charged crime; second, it must examine the facts and ascertain whether the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater." Id. at 280, 513 N.E.2d at 313.
Breaking and entering, in this case, is a lesser included offense of aggravated burglary, as the crime of breaking and entering contains elements identical to or contained within the crime of aggravated burglary without the aggravating element of an occupied structure. Id. at 280, 513 N.E.2d at 313; State v.Moon (July 6, 1982), Montgomery App. No. 7614, unreported; see also, Committee Comment to R.C. 2911.13. Because breaking and entering is a lesser included offense of aggravated burglary, in this case, then attempted breaking and entering is a lesser included offense of the charge of attempted aggravated burglary contained in the indictment.
We now apply the second prong of the Kidder test to determine whether a reasonable juror could conclude that the evidence presented supports a conviction for the lesser offense and not the greater. Kidder, supra, at 280, 513 N.E.2d at 313; State v.Thomas (1988), 40 Ohio St. 3d 213, 533 N.E.2d 286, paragraph two of the syllabus.
In this case the trial judge was permitted, at the stage of the trial when he had heard the evidence and was determining which instructions should be given, to make the determination that because the evidence clearly showed this was a house maintained as a permanent dwelling, even though temporarily unoccupied [R.C. 2909.01(A)], no reasonable jury could conclude that this structure was unoccupied. Although a trial judge is not permitted to withdraw from jury consideration any essential element of a crime, the judicial analysis at the instruction stage of the trial is different.
In determining whether to give a requested instruction on a lesser included offense, the court can find that a particular view of the evidence necessary to find the lesser included offense is unreasonable as a matter of law. Thomas, supra,40 Ohio St. 3d at 217, 533 N.E.2d at 290. The holding from theThomas case states that "even though an offense may be statutorily defined as a lesser included offense of another, a charge on the lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense." Id. at 216, 533 N.E.2d at 289; State v.Yeager (Apr. 10, 1991), Wayne App. No. 2593, unreported, 1991 WL 57339.
Here the trial judge found that the evidence could not reasonably support an acquittal on aggravated burglary and a conviction on breaking and *Page 144 entering because there was no evidence that would have reasonably allowed a jury to conclude that the structure was "unoccupied."
Accordingly, appellant's first assignment of error is overruled.
Assignment of Error II "The trial court erred to the prejudice of appellant and in violation of rights conferred by Article I, Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendments of the Constitution of the United States, when it instructed the jury that one of the essential elements of the crime had been established as a matter of law."
The trial court charged the jury on the crime of attempted aggravated burglary as follows:
"The essential elements of the crime of a attempted aggravated burglary as charged in the second count in the indictment are as follows:
"First, the defendant attempted to trespass in an occupied structure;
"Second, by force;
"Third, with the purpose in committing a theft therein; and,
"Fourth, at the time of the trespass, a person was present or likely to be present at or in the occupied structure."
Over defense counsel's objection, the court, in its general instructions to the jury, stated: "You are instructed as a matter of law, that the residence which is involved in this count [attempted aggravated burglary] is an occupied structure."
The Due Process Clause of the Fourteenth Amendment to the United States Constitution denies states the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense. In reWinship (1970), 397 U.S. 358, 364, 90 S. Ct. 1068, 1072,25 L. Ed. 2d 368, 375. Jury instructions that effectively relieve the state of its burden of persuasion violate a defendant's due process rights. Sandstrom v. Montana (1979), 442 U.S. 510,99 S. Ct. 2450, 61 L. Ed. 2d 39; Rose v. Clark (1986), 478 U.S. 570,106 S. Ct. 3101, 92 L. Ed. 2d 460. Such directions subvert the presumption of innocence accorded to accused persons and also invade the truth-finding task assigned solely to juries in criminal cases. Carella v. California (1989), 491 U.S. 263, 264,109 S. Ct. 2419, 2420, 105 L. Ed. 2d 218, 221.
However, a mandatory jury directive resulting in constitutional error may be harmless error. All such errors are not equivalent to constitutionally impermissible directed verdicts for the state. Sandstrom, Rose, and Carella, *Page 145 supra. Errors of constitutional dimension do not necessarily require reversal of criminal convictions if the reviewing court can confidently determine from the whole record that the constitutional error was harmless beyond a reasonable doubt.Chapman v. California (1967), 386 U.S. 18, 87 S. Ct. 824,17 L. Ed. 2d 705; Delaware v. Van Arsdall (1986), 475 U.S. 673,106 S. Ct. 1431, 89 L. Ed. 2d 674.
We now turn to the instant case to determine whether the element of "occupied structure" was actually decided by the jury despite the improper jury charge. The jury was instructed that in order to convict Adams of aggravated burglary it must find the aggravating element that "at the time of the trespass a person was present or likely to be present at or in the occupied structure." R.C. 2911.11(A)(3). R.C. 2909.01 offers four separate and distinct definitions of an "occupied structure," one of which defines the structure as one "[i]n which at the time any person is present or likely to be present." R.C. 2909.01(D).
The jury, by virtue of its conviction of the defendant on the attempted aggravated burglary charge, necessarily found beyond a reasonable doubt that "at the time any person is present or likely to be present," thus also satisfying one of the alternative definitions for occupied structure.1
Therefore, despite the trial court's impermissible jury directive, the jury independently performed its function by finding, beyond a reasonable doubt, the existence of every material element of the crime. We conclude that the error at issue here was harmless beyond a reasonable doubt.
Accordingly, appellant's second assignment of error is overruled.
Assignment of Error III "The trial court erred to the prejudice of appellant when it entered a judgment of conviction, where such judgment was against the manifest weight of the evidence, or in the alternative, the trial court erred in denying appellant's motion for acquittal."
Our review of the record yields sufficient competent and credible evidence related to every element of the crime charged, and in giving all reasonable inferences in weighing the evidence, we cannot say that the jury clearly lost its way so as to create a manifest miscarriage of justice. State v. Martin *Page 146 (1983), 20 Ohio App. 3d 172, 20 OBR 215, 485 N.E.2d 717. The record fully supports the jury's verdict with proof beyond a reasonable doubt.
Accordingly, appellant's third assignment of error is overruled.
Judgment affirmed.
BAIRD, P.J., concurs.
REECE, J., dissents.
1 As stated, the trial court instructed the jury to find the structure occupied, as a matter of law, without setting forth any specific definition pursuant to R.C. 2909.01.