State v. Ocheltree

• Decision Date: 30 March 1982
• Docket Number: No. 15113,15113
• Citation: 289 S.E.2d 742,170 W.Va. 68
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Joseph Milen OCHELTREE.

Page 742

289 S.E.2d 742

170 W.Va. 68

STATE of West Virginia v. Joseph Milen OCHELTREE.

No. 15113.

Supreme Court of Appeals of West Virginia.

March 30, 1982.

Syllabus by the Court

1. "An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense." Syl. pt. 7, State v. Bailey, 159 W.Va. 167, 220 S.E.2d 432 (1975), overruled on other grounds, 269 S.E.2d 401 (1980).

2. Criminal trespass, as defined by W.Va.Code, 61-3B-2 [1978], is not a lesser included offense of burglary by breaking and entering, as defined by W.Va.Code, 61-3-11(a) [1973].

3. The intent to commit a felony or any larceny is an essential element of the crime of burglary under W.Va.Code, 61-3-11(a) [1973]. It is well settled, however, that such intent may be inferred by the jury from the facts and circumstances of the case.

4. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syl. pt. 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

5. A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.

David M. Finnerin, Parkersburg, for appellant.

Harry G. Deitzler, Pros. Atty., Parkersburg, for appellee.

McHUGH, Justice:

The appellant, Joseph Milen Ocheltree, was convicted of the crime of burglary by breaking and entering. The case is before this Court on an appeal from a final order of the Circuit Court of Wood County, entered on July 3, 1980, denying the defendant's motion to set aside the verdict and award him a new trial. That order also sentenced the defendant to a term of one to 15 years at the West Virginia State Penitentiary at Moundsville.

The defendant, Joseph Milen Ocheltree, was convicted after a jury trial of burglary by breaking and entering. On this appeal he assigns three errors: (1) the trial court's refusal to give a jury instruction on criminal trespass as a lesser included offense of burglary by breaking and entering; (2) the evidence at trial was not sufficient to show the requisite intent for burglary by breaking and entering; and (3) he was denied a fair trial because of comments made by the prosecutor in his closing argument.

I

At his trial the defendant requested that the following instruction be given to the jury:

One of the offenses included within the charge contained in the indictment is trespass.

Trespass is committed when any person knowingly enters in, upon, or under a structure ... without being authorized ... [to do so].

The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, JOSEPH OCHELTREE, is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains throughout the entire trial.

Before JOSEPH OCHELTREE can be convicted of trespass, the State of West Virginia must overcome the presumption of innocence and prove to the satisfaction of the jury beyond a reasonable doubt that: 1. The Defendant, JOSEPH OCHELTREE, 2. In Wood County, West Virginia, 3. On or about the 18th day of February, 1980, 4. Did knowingly enter in and upon the dwelling house of Carolyn Eliot, 5. Without being authorized to do so, and 6. Without any intent to commit larceny therein.

If after impartially considering, weighing and comparing all of the evidence, both that of the State and that of the Defendant, the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of trespass, you may find JOSEPH OCHELTREE guilty of trespass. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of trespass, you shall find JOSEPH OCHELTREE not guilty of trespass.

The State objected to this instruction as being contrary to the law and the trial judge refused to give it to the jury. The defendant assigns that refusal as error.

The defendant argues that criminal trespass is a lesser included offense of burglary by breaking and entering. The State, on the other hand, argues that criminal trespass is not a lesser included offense of burglary by breaking and entering and that, even if it is a lesser included offense, the evidence at trial did not support the instruction.

On the issue of what constitutes a lesser included offense of a crime charged, we recently said:

'The test of determining whether a particular offense is a lesser included offense is that the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser offense.' Cook v. State, 258 Ind. 667, 671-72, 284 N.E.2d 81, 84 (1972).... We summarized this test in syllabus point 7 of State v. Bailey, 159 W.Va. 167, 220 S.E.2d 432, (1975) where we said: 'An offense is not a lesser included offense if it requires the inclusion of an element not required in the greater offense.

State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545, 557 (1981). ¹ The Supreme Judicial Court of Maine explained the test of what is a lesser included offense in State v. Luce, 394 A.2d 770 (Me.1978):

The legal definition of the crime ... is the exclusive measure of whether the greater offense includes the lesser. (Citations omitted.) Although an indictment, as in this instance, charges elements of the lesser offense not included within the method of the greater crime as defined and thereby fully sets forth all the essential elements of the lesser crime as defined, the lesser offense is not an included offense. One must look to the legal definition of the greater offense and find all the essential elements of the lesser offense before correctly concluding that the lesser offense is necessarily included.

394 A.2d at 774 (Emphasis in the original). ²

W.Va.Code, 61-3-11(a) [1973], provides: "If any person shall ... in the daytime, break and enter, the dwelling house ... of another, with intent to commit a felony or any larceny therein, he shall be deemed guilty of burglary." W.Va.Code, 61-3B-2 [1978], provides: "Any person who knowingly enters in, upon or under a structure or conveyance without being authorized, licensed or invited ... shall be guilty of a misdemeanor...."

The elements necessary to prove burglary under W.Va.Code, 61-3-11(a) [1973], therefore, are: (1) in the daytime, (2) breaking and entering, (3) the dwelling house of another, (4) with the intent to commit a felony or any larceny therein. The elements necessary to the proof of criminal trespass under W.Va.Code, 61-3B-2 [1978], are: (1) a knowing entry, (2) in a structure or conveyance, (3) without being authorized, licensed or invited.

The West Virginia burglary and trespass statutes are similar to Pennsylvania's burglary and trespass statutes. ³ In this jurisdiction, as in Pennsylvania, "the crime of criminal trespass has a scienter requirement not necessary to prove the crime of burglary, and thus cannot be categorized as a lesser included offense." Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978). To prove the crime of trespass, under W.Va.Code, 61-3B-2 [1978], the State must show that the entry was knowingly made. There is not a similar requirement under W.Va.Code, 61-3-11(a) [1973]. Also, in order to prove trespass in this jurisdiction the State must show that the entry was without authorization, license or invitation. Again, there is no similar requirement under W.Va.Code, 61-3-11(a) [1973]. Hence, trespass requires the inclusion of elements not required in the offense of burglary by breaking and entering. ⁴ Criminal trespass, as defined by W.Va.Code, 61-3B-2 [1978], therefore, is not a lesser included offense of burglary by breaking and entering as defined by W.Va.Code, 61-3-11(a) [1973]. Because criminal trespass is not a lesser included offense of the crime charged, it is not error for a trial judge to refuse an instruction which would allow a jury to convict a defendant charged with burglary by breaking and entering of criminal trespass. See, e.g., State v. Rupe, 226 Kan. 474, 601 P.2d 675 (1979); State v. Neighbors, 613 S.W.2d 143 (Mo.App.1980). "If trespass is not an included offense of burglary ... then appellant was not entitled to an instruction to that effect which would have given the jury the opportunity to convict him of that crime." Goodpaster v. State, 402 N.E.2d 1239, 1242 (Ind.1980).

The West Virginia criminal trespass statute changes the common law of trespass. It attaches criminal liability to certain acts which may not have constituted the crime of trespass under the common law. For example, "mere trespass upon real or personal property, which is also the subject of a civil action, is not always a crime at common law; but it is a crime at common law if it amounts to a breach of the peace, or if it tends to or threatens a breach of the peace." Miller v. Harless, 153 Va. 228, 244, 149 S.E. 619, 624 (1929).

While certain acts of trespass were regarded as crimes at common law, the distinction between trespasses for which there was a private remedy only and to those for which there might be a public prosecution was not laid down with much accuracy or precision. It does seem clear, however, that although every trespass which is a disturbance of the peace is indictable, every trespass which is the subject of a civil action is not an indictable offense. To constitute the offense of criminal trespass, intentional acts must be used, or a...