dissenting.
I would affirm the District Court and deny the writ. Under Ohio law the element that the “occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present” is satisfied where the occupied dwelling is a home from which the residents are only temporarily absent. This was the holding of the Ohio Court of Appeals of Franklin County in this case. This holding was consistent with the earlier decision of the Ohio Court of Appeals in State v. Veal, 48 Ohio App.2d 46, 355 N.E.2d 521 (1975). It was endorsed by the Supreme Court of Ohio in State v. Kilby, 50 Ohio St.2d 21, 361 N.E.2d 1336 (1977). The syllabus * in Kilby reads:
1. Where the state proves that an occupied structure is.a permanent dwelling house which is regularly inhabit*424ed, that the occupying family was in and out on the day in question, and that such house was burglarized when the family was temporarily absent, the state has presented sufficient evidence to support a charge of aggravated burglary under R.C. 2911.11.
Thus a jury instruction that in order to prove that someone was likely to be present the state must prove beyond a reasonable doubt that the structure is a permanent dwelling house which is inhabited, that the family is in and out on the day of the burglary, and that the burglary occurred while the family is temporarily absent would be appropriate under Ohio law.
This construction of Ohio law does not, as the majority asserts, remove the distinction between burglary and aggravated burglary. It simply defines what degree of likelihood Ohio requires for “likely to be present,” and where all of the above factors are present likelihood is satisfied. Ohio appears to apply an objective standard of likelihood and not the accused’s knowledge. Therefore, unless some standard is set a jury would be required to ' apply some percentage of chance or other speculative measure of likelihood.
In State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d 745, appeal dismissed, 444 U.S. 804, 100 S.Ct. 25, 62 L.Ed.2d 17 (1979), the Ohio Supreme Court rejected the argument that Kilby authorized a presumption that if the state proved that the structure was a permanent or temporary habitation, it would be presumed that a person is likely to be present. But, when that court did so, it specifically reaffirmed the syllabus quoted above. 58 Ohio St.2d at 60, 388 N.E.2d 745.
I agree with the District Court that a jury could not reasonably find that this element had not been proved beyond a reasonable doubt. No rational juror could help but find that the house was regularly inhabited and the occupying family in and out during the day in question and the house burglarized while they were temporarily absent. While, as the District Court noted, one might disagree with the construction given this statute by the Ohio Supreme Court as to what is required by the language that the dwelling is “likely to be occupied,” it is not our function to adopt our preferred construction unless the state’s construction is entirely irrational.
Although the majority of the panel states that it is not applying a per se rule that the failure to give an instruction on a non-technical element of the crime can never be harmless, it appears to me that it comes close to doing so.
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which held that instructional error could be harmless, listed only the rights to uncoerced confessions, counsel, and trial before an impartial judge as so basic to a fair trial that their denial could never be treated as harmless error. The test to be applied to other errors was to “requir[e] the beneficiary of a constitutional error to prove beyond a reasona'ble doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24, 87 S.Ct. at 828. “[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Id.
In Krzeminski v. Perini, 614 F.2d 121 (6th Cir.), cert. denied, 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980), this Court had occasion to apply the harmless error rule to improper jury instructions which the court found were patently unconstitutional. The state trial judge had advised the jury that since defendant had admitted in open court that he killed the deceased, a verdict of not guilty could not be returned. The judge had also noted that an element of the crime could be presumed, contrary to the holding of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).
Applying the Chapman test this Court held that the instruction only to convict was harmless under the facts of the case.
Our examination of the record convinces us that the first error was harmless beyond a reasonable doubt. The defense at trial never argiied that the defendant should be found not guilty. It argued *425that the defendant should be found not guilty by reason of insanity, or alternatively, guilty of a lesser included offense of first degree murder. The defendant admitted the murder to numerous other people and recounted the details of the murder from the witness stand to the jury. Five people testified that the petitioner admitted the murder to them. A friend of the petitioner testified that on two different occasions, the petitioner stated that he was going to kill his wife. The only effect of the judge’s instruction that the jury could not acquit the defendant was to minimize the possibility of jury nullification. Only an irrational jury could have acquitted the defendant outright.
Krzeminski v. Perini, supra, at 125.
The Court also noted that in remanding Sandstrom to the Montana Supreme Court the Supreme Court did so with the notation that the lower court was free to consider the question of harmless error. Id., at 126 n.7. I see no distinction from the defendant’s viewpoint between an instruction presuming an element of the crime, the constitutional error in Sandstrom, and the failure to give an instruction on an element. In any event the jury has not had the opportunity to pass on that element. Because I think we are required to apply the harmless error rule where a state trial judge fails to instruct the jury on an element of the crime, and because the error here was harmless, I respectfully dissent.
I agree with that portion of the majority’s opinion in which it fashions a remedy of reclassification of petitioner’s conviction.
The law in Ohio since 1858 has been that it is the syllabus of the Supreme Court decisions which states the law, i.e., the points of law decided in a case are to be found in the syllabus. Therefore, where the justice assigned to write the opinion discusses matters or expresses his opinion on questions not in the syllabus, the language is merely the personal opinion of the writer.
State v. Wilson, 58 Ohio St.2d 52, 60, 388 N.E.2d 745, appeal dismissed, 444 U.S. 804, 100 S.Ct. 25, 62 L.Ed.2d 17 (1979).