concurring in part and dissenting in part.
I write separately because I believe the trial court committed reversible error when it refused Dashielle’s request to instruct the jury as to criminal trespass in the third degree as a lesser included offense to the indicted charge of burglary in the first degree. I would reverse Dash-ielle’s conviction for burglary in the second degree and remand that portion of Laurel Circuit Court Indictment 98-CR-0140-002 to the trial court for a new trial. Section IV of the majority opinion, which addresses this issue, rests upon the untenable premise that the use of the word “premises” in KRS 511.080, which defines the crime of criminal trespass in the third degree, does not refer to the definition of “premises” contained in this Chapter at KRS 511.010(B),1 but rather refers “only to land, not a building.” 2
The majority opinion properly identifies that, in order to address this allegation of error, we must apply KRS 505.020(2) to determine whether “the lesser offense involves fewer of the same constituent elements than the charged greater offense so that the proof necessary to establish the greater offense will of necessity establish every element of the lesser offense.”3 Such an inquiry requires focus on the statutory language because “the critical question is whether ‘each statute requires proof of an additional fact which the other does not’ and not whether the evidence actually introduced at trial could be relied on to prove the elements of both offenses.” 4
The Kentucky Penal Code defines the elements of burglary in the first degree at KRS 511.020:
A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or the immediate flight therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
*728(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.5
KRS 511.080 defines the elements of criminal trespass in the third degree:
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.6
The majority opinion correctly identifies that this inquiry must focus on the words “premises” and “building” to determine whether proof of the “enters or remains unlawfully in a building” element of burglary in the first degree necessarily establishes that an individual “enters or remains unlawfully in or upon premises.” Where I depart from the majority opinion is in the significance I attach to the KRS Chapter 511 definitions of “building” and “premises”:
(1) “Budding”, in addition to its ordinary meaning, means any structure, vehicle, watercraft or aircraft:
(a) Where any person lives; or
(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation.
Each unit of a building consisting of two (2) or more units separately secured or occupied is a separate building.
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(3) “Premises” includes the term “building” as defined herein and any real property.7
As any “budding” falls within the definition of “premises,” we find guidance8 in how overlapping definitions effect the lesser included offense analysis from the Official Commentary to KRS 505.020(2)(a):
The first situation is contained in subsection (a). It serves to “include” within one offense any other offense (felony, misdemeanor, or violation) which may be established by the same, or less than all, facts required for proof of the first. (It should be obvious that in this context “fact” means ultimate fact.) In other words, “if the proof necessary to establish the greater offense wdl of necessity establish every element of the lesser offense,” the latter is an included offense. The law of criminal trespass, as contained in KRS Ch 511 provides a good illustration of this subdivision; an unlawful entry into a dwelling house constitutes criminal trespass in the first degree (KRS 511.060); an unlawful entry into a building constitutes criminal trespass in the second degree (KRS 511.070). Since the same proof that establishes the first offense will also establish the second, the latter is an included offense. This means [that], as a consequence of subsection (2)(a), an individual charged with first degree trespass can be convicted of second degree trespass 9
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*729The commentary to KRS 505.020 thus conclusively establishes that “definitional overlap” between elements of crimes may qualify a crime as a lesser included offense.
The majority opinion’s erroneous conclusion stems directly from its difficulties in processing the possibility that the same conduct, e.g., unlawful entry into a building, could constitute either criminal trespass in the second degree or criminal trespass in the third degree:
While a “premises” can be either a “building” or “any real property,” (KRS 511.0108), that term is obviously used in the context of second- and third-degree criminal trespass to refer only to land, not a building. Otherwise, KRS 511.070 would be redundant, ie., “either a building or a building,” and KRS 511.080 would criminalize the same conduct, ie., trespass of a building, which is already criminalized in KRS 511.070. The dual definition of “premises” in KRS 511.010(3) applies only when that term is used in the context of KRS 511.090, which describes privileges and licenses to enter or remain upon the premises of another.10
I am baffled by the fact that the majority views this overlap between “premises” and “buildings” as an unpassable hurdle. The entire concept of lesser included offenses is premised on the idea that a given action or conduct can constitute multiple crimes.11 In fact, elsewhere in the opinion, the majority passively accepts the fact that “every dwelling is a building”12 although such definitional overlap necessarily leads to the conclusion that a person who enters a dwelling unlawfully with the intent to commit a crime inside has committed both burglary in the second degree and burglary in the third degree. Even the Official Commentary to KRS 505.020 states that, were it not for a double jeopardy bar codified at 505.020(l)(a), every person who committed burglary in the second degree could also be convicted of criminal trespass in the first degree:
The first of the exceptions prohibits multiple convictions for offenses arising out of one course of conduct if one of them constitutes an “included offense.” ... To illustrate by use of a hypothetical situation: suppose that D ... unlawfully enters a dwelling house with intent to steal. He is apprehended while in the house. With this conduct, D has committed the offense of burglary in the [second] degree. See KRS 511.020. He has also committed the offense of criminal trespass in the first degree, which is committed with all of the elements of burglary except for the requirement of “intent to commit a felony therein. ” See 511.060.
Subsection (l)(a) would prohibit a conviction of D for both of these offenses.13
Certainly, as a factual matter, a given building either is or is not a “dwelling,” and a defendant who unlawfully enters a dwelling either does or does not intend to commit a crime therein. In such cases, therefore, trial courts should only actually instruct on the lesser included offense when the evidence submitted at trial presents an issue with respect to either the nature of the structure or the purpose for which the defendant unlawfully entered the structure. Nonetheless, as a matter of *730law, the definitions of “building” and “dwelling” overlap just as surely as do the definitions of “building” and “premises,” and, in both eases, the inclusive definitions create the possibility of lesser-included offenses.
Any concerns regarding this overlap should be assuaged by the Official Commentary to KRS 511.060, which indicates that the overlap was an intentional decision on the part of the drafters of the Kentucky Penal Code. The majority quotes this Commentary selectively and without regard to its context in an attempt to portray criminal trespass in the third degree as a crime which can only be committed by intrusions onto unimproved land.14 The full text of the Commentary to KRS 511.060, however, flatly contradicts the majority’s reading and demonstrates that, “premises” as used in KRS 511.080 includes the definitions of “dwelling” and “building” as used in the higher degree criminal trespass offenses, and therefore criminalizes the same conduct criminalized by the higher degree criminal trespass offenses. Criminal trespass in the third degree is broader than the higher degree criminal trespass offenses, however, because it also criminalizes intrusions onto land:
The offense that is created by KRS 511.080, criminal trespass in the third degree, has the very same elements as the two higher degrees of trespass except for the area into which unlawful intrusion is proscribed. The protected area is described as “premises,” which is defined in KRS 511.010 to include “dwellings, ” “other buildings, ” and “any real property. ” Defined in this way, it should be apparent that the lowest degree of trespass is included in each of the two higher degrees. Its exclusive coverage is only for unlawful intrusions onto land.15
In other words, since all “dwellings” 16 are also “buildings” and all “buildings” are included within “premises,” all “dwellings” are also “premises,” and a defendant who unlawfully enters any of the above may be found guilty of criminal trespass in the third degree. A defendant who unlawfully intrudes upon unimproved land belonging to another which is neither fenced nor otherwise enclosed without entering a dwelling or other budding, however, can only be guilty of criminal trespass in the third degree.
Without a single citation and notwithstanding the fact that KRS 511.010 begins, “The following definitions apply in this chapter unless the context otherwise requires,” 17 the majority holds that the definition of “premises” contained at KRS 511.010(3) does not apply to the use of the word “premises” in KRS 511.050,18 KRS 511.070, or KRS 511.080, and instead only applies to the use of “premises” in KRS 511.090. It is a tenuous argument indeed which rests on the assumption that the drafters of the Kentucky Penal Code included, presumably for the sake of simplicity, a separate definition of “premises” which applies only one-fourth of the times the word is later used in the chapter.
*731As KRS 505.020(2)(a) defines a lesser included offense as a crime “established by proof of the same or less than all the facts required to establish the commission of the offense charged”19 our inquiry of whether criminal trespass in the third degree can, as a matter of law, ever be a lesser included offense of burglary in the first degree turns on whether “enters or remains unlawfully in a building” as used in the statute criminalizing burglary in the first degree establishes all of the ultimate facts necessary to make a prima facie case for criminal trespass in the third degree. In light of KRS 511.010(3)’s “building-inclusive” definition of “premises,” and the Official Commentary which specifically references the overlap, the only conclusion I find possible is that, as a matter of law and logic, criminal trespass in the third degree may be a lesser included offense to burglary in the first degree.
The alternative conclusion reached by the majority opinion, that criminal trespass in the third degree is merely a “separate, uncharged” offense, requires us to embrace two inferences which I simply cannot accept: (1) The definition of “premises” found in KRS 511.010(3) is essentially meaningless; and (2) The drafters of the Kentucky Penal Code intended that virtually any defendant who commits a residential burglary is guilty of the additional offense of criminal trespass in the third degree for the period of time he or she walked through the yard before entering the home. The majority’s conclusion simply allows for no double jeopardy bar which would prevent both a burglary conviction and a criminal trespass in the third degree conviction for the same conduct. Such a conclusion defies simple logic.
Dashielle argues that his testimony which denied that he entered the Andersons’ home created reasonable doubt with respect to the charge of burglary in the first degree, but that the jury could have found him guilty of criminal trespass in the third degree because of his unauthorized entry onto the Andersons’ premises. Although we have addressed issues in the past concerning whether trial testimony created a basis for the trial court to instruct on criminal trespass in the first degree as a lesser included offense to a burglary charge,20 each of those cases focused on the evidence concerning the purpose for the intrusion, i.e., whether the defendant intended to commit a crime, but did not present issues concerning the nature of the area into or upon which the defendant unlawfully entered. Nonetheless, these holdings guide our examination of the evidence before the trial court, and, despite a great deal of inculpatory evi*732dence presented by the Commonwealth, I believe that Dashielle’s testimony created a factual issue appropriate for jury resolution regarding whether Dashielle entered the Anderson home or merely trespassed on the surrounding property. As was the case in McClellan v. Commonwealth,21 however, “[ujnfortunately, there was no instruction to the jury which would permit it to find that”22 Dashielle’s unlawful entry onto the Anderson’s property was limited to a trespass upon their land. Accordingly, I believe the trial court’s failure to instruct on the lesser included offense of criminal trespass in the third degree was error.
Although the majority opinion asserts that the jury’s verdict with respect to the theft by unlawful taking charge in the indictment renders harmless any error with respect to the burglary charge, I cannot agree. While the Commonwealth frequently engages in a harmless error analysis, in this ease, the Commonwealth’s brief does not mention the words “harmless error” with respect to this allegation of error. In my opinion, the Commonwealth’s failure to do so was not an oversight. Appellate courts can, at best, speculate about how a jury reached its verdict, and such speculation borders on pure guesswork when, as was the case here, the jury never had the opportunity to examine the defense raised by the defendant’s theory of the case through the lens of proper jury instructions. This jury could have found liability on Dashielle’s behalf for the charge of theft by unlawful taking without concluding that he entered the Anderson residence.23 I concede the fact that there is a very real possibility that a jury upon remand would return the same verdict, but I’m unwilling to assume that result and deny Dashielle the opportunity to present his defense to the jury. Taken to its logical conclusion, the “harmless error” conclusion reached by the majority would eliminate the possibility of reversible error in any case where the trial court improperly failed to instruct on a lesser included offense.
Accordingly, I would reverse Dashielle’s conviction for burglary in the second degree and remand that count of his indictment to the trial court for a new trial.
JOHNSTONE and STUMBO, JJ., join this opinion, concurring in part and dissenting in part.
. KRS 511.010(3) ('“Premises’ includes the term 'building' as defined herein and any real property.” Id.).
. See Majority Opinion at 9, at 726.
. Cheser v. Commonwealth, Ky.App., 904 S.W.2d 939 (1995) (citing Hart v. Commonwealth, Ky.App., 768 S.W.2d 552, 553 (1989)).
. Id.
. KRS 511.020.
. KRS 511.080.
. KRS 511.010.
. See KRS 500.100 ("The commentary accompanying this code may be used as an aid in construing the provisions of this code.” M); Cooper v. Commonwealth, Ky., 550 S.W.2d 478 (1977).
. 1974 Kentucky Crime Commission/LRC Commentary to KRS 505.020 (emphasis added). Thus, as a matter of law, criminal trespass in the second degree, KRS 511.070, is a lesser included offense of criminal trespass in the first degree, KRS 511.060, because the definition of "building” encompasses the definition of “dwelling.” This does not mean, of course, that a trial court should always instruct a jury regarding criminal trespass in the second degree as a lesser included offense to criminal trespass in the first degree. To the contrary, a trial court should only do so when the evidence submitted at trial would raise a question about the nature of the structure allegedly unlawfully entered by the defendant. See, e.g., Parker v. Commonwealth, Ky., 952 S.W.2d 209, 211 (1997); Webb v. Commonwealth, Ky., 904 S.W.2d 226 (1995); Bills v. Commonwealth, Ky., 851 S.W.2d 466, *729469 (1993); Billings v. Commonwealth, Ky., 843 S.W.2d 890 (1992).
. Majority Opinion at 9, at 726.
. See, e.g., KRS 505.020(1) ("When a single course of conduct may establish the commission of more than one (1) offense, he may be prosecuted for each such offense.” Id..).
. See, Majority Opinion at 8, at 726. See also Baker v. Commonwealth, Ky.App., 677 S.W.2d 316 (1984) ("[A] building can include a dwelling under KRS 511.010(l)(a).” Id.).
. 1974 Kentucky Crime Commission/LRC Commentary to KRS 505.020 (emphasis added).
. See Majority Opinion at 9, at 726 (This conclusion is supported by the official commentary to the trespass statutes, which provides that since trespass of a building is included within the coverage of the higher degrees of criminal trespass, the “exclusive coverage [of third degree criminal trespass] is only for unlawful intrusions onto land.” Id.).
. 1974 Kentucky Crime Commission/LRC Commentary to KRS 511.060 (emphasis added).
. See KRS 511.010(2) (" 'Dwelling' means a building which is usually occupied by a person lodging therein.” Id.).
. KRS 511.010.
. "A person is guilty of possession of burglar’s tools when he possesses any tool, instrument or other thing adapted, designed or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking KRS 511.050(1) (emphasis added).
. KRS 505.020(2)(a).
. See, e.g., Martin v. Commonwealth, Ky., 571 S.W.2d 613, 614-5 (1978) (Convictions reversed for trial court’s failure to instruct on First Degree Criminal Trespass where the defendants "admitted that they had entered [the victim’s] home without her permission. However, they both denied they had committed a crime in the dwelling or had intended to do so. There was also an attempt to prove that both were too drunk at the time of the entry to' form any culpable intent.” Id. at 614); Polk v. Commonwealth, Ky., 574 S.W.2d 335, 338-9 (1978) (Trial court did not err in denying First Degree Criminal Trespass instruction because "the appellant never admitted being in the house. The house was thoroughly ransacked, and the appellant was identified as the one running from the house as soon as the officer arrived.” Id. at 339.); Commonwealth v. Sanders, Ky., 685 S.W.2d 557, 558-9 (1985) (Conviction affirmed despite failure to instruct on lesser included offense of First Degree Criminal Trespass: "[T]he trial court must instruct the jury according to the evidence. Here, Sander’s defense was alibi. We do not have testimony or circumstances that the jury could infer that there was presence in the house with no intent to commit a crime.” Id. at 559.); McClellan v. Commonwealth, Ky., 715 S.W.2d 464, 466 (1986), cert. denied 479 U.S. 1057, 107 S.Ct. 935, 93 L.Ed.2d 986 (1987) (Reversing for trial court’s failure to instruct on First Degree Criminal Trespass where the defendant testified "that his sole purpose in entering the room was to talk to his wife and to attempt to persuade her to return home with him. He repeatedly testified that he had no thought of harming his wife or the victim or of committing any crime whatsoever when he entered the room.” Id.).
. Supra note 20 at 467.
. Id.
. The jury could have concluded that, without himself entering the residence, Dashielle "t[ook] or exercise[d] control over [the Andersons’] moveable property ... with intent to deprive [them] thereof.” See KRS 514.030.