State v. Johnson

HOWE, Justice

(concurring and dissenting):

I agree with the Per Curiam opinion as to the exclusion of defendant’s statement. I cannot agree however that “all the evidence in this case is consistent only with the burglary charge and there is no evidence consistent with criminal trespass.” The only evidence which the majority opinion relies on is that a security box had been moved from the head of a bed to the center and the lock on the box was exposed. Nothing was taken. I do not think that evidence necessarily shows an attempt to commit theft and excludes trespass. The instruction on the lesser included offense of criminal trespass should have been given.