I respectfully dissent with respect to appellant's third assignment of error. See State v. Lane (1976), 50 Ohio App.2d 41, 4 O.O.3d 24, 361 N.E.2d 535, and State v. Dye (June 26, 1986), Ross App. No. 1117, unreported, 1986 WL 7246.
I concur in the judgment and opinion with respect to appellant's first, second, and fourth assignments of error. I write separately to further discuss appellant's second assignment of error.
I agree with the majority opinion that R.C. 2911.11 requires that the trespass in an occupied structure must be contemporaneous with the purpose to commit the theft offense. In other words, under R.C. 2911.11 a defendant must have formed his purpose to commit a theft offense before he commits the trespass. Although there are divergent views on this issue, I agree with the majority opinion and the cases cited therein in support of this interpretation of the statute.
Some jurisdictions need not address this issue. For example, the Texas burglary statute expressly provides that the commission of a felony offense or a theft offense within a "building or habitation" constitutes the crime of burglary. Vernon's Tex. Code Ann., Penal Code, Section 30.02 provides in pertinent part:
"Burglary
"(a) A person commits an offense if, without the effective consent of the owner, he:
"* * *
"(3) enters a building or habitation and commits or attemptsto commit a felony or theft. * * *" (Emphasis added.)
Thus, the Texas statute does not contain an element requiring that an offender must have formed his purpose to commit the offense before he commits the trespass. *Page 525