A customer had left the bank card at the business the night before the burglary. It had been placed next to a cash register at the bar. The owner of the business establishment testified that defendant did not have permission to go into the building. During the instruction conference, defendant tendered Instruction No. B that would have submitted the offense of first degree trespass as a lesser included offense of burglary in the second degree.
Defendant asserts one allegation of trial court error.
He asserts the evidence was such that the jury could have acquitted him of second degree burglary but found him guilty of trespass in the first degree. Trespass in the first degree is a lesser included offense of burglary in the second degree. A trial court is required to submit a lesser included offense instruction if the evidence arguably shows a lack of an essential element of the greater offense, while affording a basis for conviction of the lesser. The evidence at trial showed that defendant entered the bar unlawfully and, once there, that he stole items from within those premises. Defendant offered no evidence.