dissenting: The jury instruction on aggravated burglary used in this case didn’t require the State to prove that Defendant Tomas Acevedo knew he lacked authority to enter the Wal-Mart store in Garden City—an essential component of the crime. The juiy heard conflicting evidence on Acevedo’s knowledge. The flaw in the instruction, therefore, deprived Acevedo of *671a fair trial. I respectfully dissent from the majority’s decision to affirm that conviction. I would reverse and remand for a new trial.
The legal error here replicates the one another panel recently addressed in State v. Adams, No. 106,935, 2013 WL 4046396 (Kan. App. 2013) (unpublished opinion). I adhere to my dissent in Adams outlining the substantive deficiency in the aggravated burglary instruction common to these cases and to the pattern criminal instructions. See PIK Crim. 3d 59.18; PIK Crim. 4th 58.130. As stated in the instruction here, the second element of the offense simply requires the jurors to find that Acevedo entered or remained in the Wal-Mart without authority. It doesn’t inform the jurors that Acevedo had to know he was without authority, even though that must be the law. And it effectively renders irrelevant Acevedo’s legally proper defense that he didn’t know he had been banned from Wal-Mart property. Based on the instruction, the jurors could have (and should have) convicted Acevedo even if they believed he had never been informed of his placement on a Wal-Mart list of banned persons.
Defendants’ actual knowledge of their lack of authority seldom comes up in the run of aggravated burglary prosecutions. When defendants break into locked office buildings or enter homes to which they have no connection, the circumstantial evidence of lack of authority is overwhelming. That evidence typically will be augmented with testimony from the owners that the defendants had no authority to be inside. Defendants wisely contest the charges in other ways. So in those cases, lack of authority simply isn’t of any moment.
But that’s not true if the alleged crime entails entering a store or other commercial premises during normal business hours. At those times, members of the public are not only allowed to enter, they’re encouraged to do so. They have a generally granted authority to enter and remain in those places except for limited areas otherwise obviously off limits, such as secured offices or locations clearly designated for employees only. To convict someone of aggravated burglary for walking into a store during business hours with the requisite bad intent to commit a theft or other crime, the State must prove that the general authority extended to the public *672has been rescinded as to that defendant in particular. And the rescission of authority must have been communicated to the defendant before he or she enters the premises. Otherwise, people could be placed on secret “lack of authority” lists maintained by stores and successfully prosecuted for aggravated burglaiy without knowing their actions would violate that statute. But people must have fair notice in advance that their conduct may subject them to criminal penalties. See Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618, 83 L. Ed. 888 (1939) (A criminal statute is “repugnant” to due process requirements if it fails to “inform[] as to what the State commands or forbids,” and, thus, offends “ ‘ordinaiy notions of fair play . . . ”); State v. Watson, 273 Kan. 426, 435, 44 P.3d 357 (2002) (statute criminalizing trafficking in contraband in penal institution gives fair notice only when administrator of particular facility clearly makes known what items are forbidden).
And that is the vice of the aggravated burglaiy instruction in this case—it relieves the State of tire obligation to prove that Acevedo knew the general authority afforded members of the public to enter Wal-Mart no longer applied to him. The second element of the instruction should have informed the jurors that “the defendant did so [entered or remained] knowing he was without authority” or words to that effect. The defect was accentuated by the language in the first element requiring that the jurors find Acevedo “knowingly entered” the store. The juxtaposition of those elements effectively told the jurors they could convict if Acevedo deliberately went into the store whether or not he understood he had been banned from the premises, so long as he actually had been so banned. That is, what Acevedo knew or understood bore on and was part of the first element but not the second element. The district court’s spontaneous objection to defense counsel’s closing argument on this point only compounded the problem in this case.
The majority’s analysis effectively ignores the problem posed in aggravated burglaiy prosecutions when the defendant enters a store during business hours with the intent to shoplift. For starters, the majority parses the statutory language of the aggravated bur*673glary statute, K.S.A. 21-3716, and announces the legislature didn’t intend the word “knowingly” to modify tire phrase “without authority.” Probably not, the way the statute has been drafted. (That begs the question of exactly what the legislature meant to communicate by saying the crime requires “knowingly... entering into or remaining within any building ... or other structure.” It would be the exceedingly rare burglar who would unknoioingly go into a building. But the peculiarity of that phrasing is another matter altogether.) The instructional defect has nothing to do with how “knowingly” bonds with the other statutory language. It has everything to do with how businesses open to tire public operate and how they afford fair notice to individuals who are unwelcome there.
Store owners grant broad authority to the public at large to enter their buildings during announced business hours to browse and (hopefully) buy. The owner grants that authority generically to all comers simply by holding the premises open rather than by explicitly bestowing it on or denying it to each individual approaching the front doors. Acevedo is clothed with that permission or authority, as am I. And we continue to enjoy that authority until it is taken away.
If we were to shoplift $3 items while covered by the general authority to enter the store, we would be guilty of theft, not bur-glaiy. Part of the burden for the State in prosecuting shoplifting-as-burglary cases is to prove the general authority to enter stores did not apply to the particular defendant it has charged. Fundamental criminal law principles of fair notice and due process—not the statutory language of K.S.A. 21-3716—require proof that the defendant in the dock knew he or she no longer enjoyed that authority afforded the general public. The State, therefore, must prove the store owner communicated rescission of that general authority to die particular defendant. In turn, the jury instruction on aggravated burglary must reflect diat required proof and convey to jurors that they should acquit if the State fails to show the defendant was “without [that] authority.” In other words, the instruction must reflect die requirement that the defendant know he or she no longer enjoyed the general authority to enter the store uni*674versally conveyed to the public collectively. The instruction in this case did not.[*]
The majority tries to bolster its position by imputing an “embedded,” if obscure, connotation of authority or permission as implying “some level of knowledge.” Just how that salvages the jury instruction on aggravated burglary isn’t especially clear. Here, the State had to show that the general authority or permission to enter a store during business hours had been taken away from Acevedo and that he knew it had been taken away. Wal-Mart simply couldn’t silently rescind that authority as to Acevedo. But the jury instruction doesn’t convey Wal-Mart’s obligation to communicate to Acevedo its decision to ban him from company property.
The majority seems to suggest a person can’t be without authority if he or she doesn’t know that an earlier grant of authority has been withdrawn. And, more to the point here, the jurors in this case would understand as much from the aggravated burglaiy instruction. The majority’s position fails on both counts. For example, a general contractor might authorize the subcontractors on a construction job to charge the cost of materials at a particular building supply store with' which the general contractor has credit arrangements and discounted pricing. The subcontractors understand the process and order materials accordingly. The general contractor, however, comes to suspect one subcontractor has been padding its supply lists, so the general contractor tells the supply store not to accept any more job orders from that subcontractor. But the general contractor doesn’t immediately inform the sub*675contractor. I think it unlikely anyone could reasonably say the subcontractor retained authority to charge supplies in that situation based on some connotative meaning of the word “authority.” I think it equally unlikely jurors in this case would somehow impute principles of fair notice to the aggravated burglary instruction and, therefore, conclude they ought to acquit if they had so much as a reasonable doubt that Acevedo had not been told to stay out of the Wal-Mart.
The majority confidently predicts jurors will invariably discern an “implicit connection” between authority and knowledge that nowhere appears in the elements instruction. And, thus enlightened, those jurors will correctly apply the law governing aggravated burglaiy. The majority’s supposition, of course, supports my fundamental point that a defendant must know he or she lacks authority to be convicted, but it then simply refuses to recognize the reality that jurors need to be expressly informed of that point. Jury instructions fail of their purpose if they “omit[] words that may be essential to a clear statement of the law.” State v. Torres, 294 Kan. 135, 147, 273 P.3d 729 (2012). Suggesting—as I do—that the elements instruction on aggravated burglary rely on explication rather than implication seems to be grounded in both common sense and reasonableness.
Finally, the majority appears to submit that the aggravated burglary instruction in this case is acceptable because it “mirrors” PIK Crim. 3d 59.18 and PIK Crim. 4th 58.130 in stating the elements of aggravated burglary. Plainly, the district court was hesitant to tinker with the language of the pattern instruction. And I agree district courts ought to be reticent to do so. At the same time, however, PIK instructions carry no legal presumption of correctness. Compare State v. Huckleberry, 823 S.W.2d 82, 86 (Mo. App. 1991) (Missouri pattern jury instructions held “presumptive correct”). The PIK elements instructions on aggravated burglary weren’t written to address authority in the unusual context of an accused shoplifter purportedly banned from the store. In that context, authority becomes especially significant. If the State can prove lack of authority along with the other elements of aggravated burglary, what would otherwise typically be a misdemeanor theft also *676supports a level 5 person felony. The difference in potential punishment is remarkable. And, as I have pointed out, the factual circumstances on authority differ materially from typical burglary cases involving forced entiy or places not normally open to the public—for which the pattern instruction was drafted.
In short, the elements instruction on aggravated burglary was legally insufficient because the crime, in this situation, hinges on a defendant entering a store in a manner inconsistent with the merchant’s authorization or permission to tire general public. When the defendant simply walks in during business hours, tire State must show the defendant knew he or she no longer enjoyed that authorization or permission. The instruction fails to allow jurors to acquit if they hold a reasonable doubt about the defendant’s knowledge.
The evidence on Acevedo’s lack of authority was in conflict. Two managers at the Garden City Wal-Mart testified that about 2 years before this incident, they told Acevedo he was banned from all Wal-Mart property and he would be subject to criminal prosecution if he entered a company store. Wal-Mart’s business practice is to obtain signed acknowledgments from persons banned from company property. Wal-Mart could not produce an acknowledgment from Acevedo. The managers testified they presented one to him but he refused to sign it. At trial, the State introduced evidence that after this incident, Acevedo told law enforcement officers he knew nothing about being banned from the Garden City Wal-Mart or any other locations. Although Acevedo did not testify at trial, his statement to police put authority and notice directly at issue.
During closing argument, Acevedo’s lawyer began to explain to the jurors that to convict they had to find Acevedo went into the store knowing he lacked authority to do so. Without an objection from the State, the district court interrupted tire lawyer and told him not to argue “ ‘knowingly’ ” with respect to any element of aggravated burglary except the first, dealing with entering or remaining rather than with authority. The district court’s admonition was brief and somewhat elliptical. But the jurors reasonably could have inferred that whether Wal-Mart informed Acevedo he had been banned or lacked authority to enter the store amounted to a *677legal irrelevancy. The district court’s remark accentuated the flaw in the elements instruction.
As the majority correctly concludes, Acevedo’s trial lawyer sufficiently raised and preserved an objection to the aggravated burglary elements instruction on the grounds it failed to properly inform the jurors that Acevedo had to know he lacked authority to enter the Wal-Mart. The issue was a central part of Acevedo’s defense. There was sufficient evidence to support the defense as a matter of law. The resolution of the defense pitted the credibility of the Wal-Mart managers as to what they said they told Acevedo nearly 2 years earlier, on the one hand, against what Acevedo told the police at the time of this incident, on the other. Those credibility determinations rest within the province of the jurors as fact-finders. The jurors could have called it either way. If they entertained a reasonable doubt that Acevedo had been told he was banned from Wal-Mart, they should have acquitted him of the aggravated burglary.
But, as I have said, the elements instruction improperly allowed the jurors to convict without having to decide the issue. The second element effectively informs the jurors they should convict even if Acevedo had not been informed Wal-Mart no longer extended to him the blanket authority it gave the public generally to enter the store.
If the instructional error nonetheless did not materially prejudice Acevedo, the aggravated burglary conviction should be affirmed. The proper standard for reviewing the harmlessness of this instructional error is open to debate. The instruction withdraws the defendant’s knowledge of lack of authority from the jurors’ consideration. As a result, the jury did not have to find a material part of the substantive offense had been proven. If a juiy instruction fails to include an element of the offense, the error compromises the defendant’s right to trial by jury protected in tire Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. See Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999); State v. Linn, 251 Kan. 797, 802, 840 P.2d 1133 (1992). It, therefore, erodes a fundamental constitutional right. The United States Supreme Court has recog*678nized that error may be harmless only if the omitted element were “uncontested and supported by overwhelming evidence.” Neder, 527 U.S. at 17. The Kansas Supreme Court adopted that standard in State v. Richardson, 290 Kan. 176, 182-83, 224 P.3d 553 (2010). The test for harmlessness, then, is twofold. Not only must the evidence bearing on the omitted element approach the irrefutable, a defendant effectively has to concede that component of the charged crime. Neither is true here. While the evidence favoring the State’s position on notice of lack of authority quite arguably appears stronger than Acevedo’s, it cannot be viewed as irrefutable on the appellate record, from which credibility determinations simply cannot be drawn. See State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (“One of tire reasons diat appellate courts do not assess witness credibility from the cold record is that the ability to observe the declarant is an important factor in determining whether he or she is being truthful.”). Acevedo not only declined to concede the issue, he based his defense on it.
Under that standard, the error could not be dismissed as harmless. The conviction would have to be reversed, and the case remanded for a new trial on aggravated burglary charge.
The parties, however, did not argue review that way. They applied the standard outlined in State v. Plummer, 295 Kan. 156, 160-63, 283 P.3d 202 (2012), and that’s how the majority addresses it. The Plummer court set out a multistep test to determine if tire failure to give a requested instruction on a lesser included offense amounts to reversible error—a statutory defect under K.S.A. 22-3414(3). 295 Kan. at 160. But the court plainly contemplated the test would be used to assess other instructional errors, including constitutional defects. 295 Kan. at 162-63 (court cites standards from Ward for harmlessness of constitutional and nonconstitu-tional errors). The court has so adapted the Plummer test. See State v. Cox, 297 Kan. 648, 662, 304 P.3d 327 (2013) (applied to requested instruction on character evidence); Foster v. Klaumann, 296 Kan. 295, 301-02, 294 P.3d 223 (2013) (applied to instructions on standard of care and professional judgment in medical malpractice action). It isn’t entirely clear to me that the Plummer test would supplant the constitutionally based analysis applicable when *679the jury is not instructed on a material element of an offense, so much as the governing criteria from Neder would be folded into the test.
I agree with the majority that Acevedo preserved the issue, the initial step in the Plummer test. For the reasons I have outlined, language that Acevedo knew he was without authority to enter the Wal-Mart store was both legally appropriate and factually supported for inclusion in the second element of the aggravated burglary instruction. Those are next two steps in the Plummer test. As to the final step, I part ways with the majority’s determination that the error was harmless here, even viewing it as a statutory one. In Plummer, the court found the proper test for reversible error in failing to give an instruction on a lesser included offense to be whether “there is a ‘reasonable probability that the error . . . did affect the outcome of die trial in light of the entire record.’ ” 295 Kan. at 168 (quoting State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]). As the party benefiting from the error, the State has the burden to demonstrate there was no such probability. State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012). With errors affecting criminal convictions, a reasonable probability standard requires the reviewing court to conclude that the “likelihood” of a different verdict “undermines confidence in the outcome of the trial,” a threshold less substantial than finding a different verdict to be “more likely tiran not.” Smith v. Cain, 561 U.S. _, 132 S. Ct. 627, 630, 181 L. Ed. 2d 571 (2012) (Brady violation); Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (habeas corpus review for prejudice based on ineffective assistance of counsel).
The instructional error requires reversal of Acevedo’s conviction even measured by the reasonable probability standard. And, as I have indicated, a good argument can be made for the far more stringent constitutional error standard.
Without belaboring what I have already said, there was diametrically conflicting testimonial evidence on notice of Acevedo’s ban from Wal-Mart. We shouldn’t and really can’t sort o,ut that conflict on appeal because it turns on credibility determinations heavily *680informed by courtroom observation available to the factfinders but wholly missing from an appellate record. Acevedo’s version is, to some extent, supported by the absence of a signed acknowledgement. The Wal-Mart managers have an explanation, but that, too, should be for the factfinders to evaluate. The State and the majority mention the testimony from one of the managers as to Acevedo’s supposedly furtive behavior in the Wal-Mart store about a month before this incident as corroborating the communication of the ban some 2 years earlier. Although that testimony was unrebutted in the sense Acevedo didn’t deny being in the store then, the implication to be drawn from his purported behavior at that time is neither unequivocal nor overwhelming. It, too, depends upon the credibility of the Wal-Mart manager’s description of Acevedo’s actions.
Factfinders could go either way in evaluating the evidence bearing on authority, especially because it largely rests on credibility. Accordingly, the State has failed to negate the reasonable probability that a properly instructed jury would have acquitted Acevedo of the aggravated burglary charge. I would, therefore, reverse the conviction and remand for a new trial.
The decision in State v. Rush, 255 Kan. 672, 877 P.2d 386 (1994), neither addresses nor controls the issue here. In that case, the court discussed the statutory language and the related elements of both criminal trespass and burglary in concluding the former is not a lesser include offense of the latter. 255 Kan. at 678. Although tire court looked at authority under each offense, it ultimately concluded that criminal trespass required proof of other elements not required to prove burglary (and by necessary extension aggravated burglary). So criminal trespass could not be a lesser included offense. The Rush court did not consider the fair notice issue bound up with authority when a charged aggravated burglary involves entry of a store or other commercial enterprise during usual business hours. The defendant in Rush broke into a locked store after it had closed for the day.