Smith v. State

OPINION

This is an appeal from a judgment of conviction, upon a jury verdict, of one count of burglary. Appellant Charles Rene Smith’s primary contention is that the district court erred in refusing his proffered jury instruction on the lesser crime of trespass. We hold that, under the elements test set forth in Blockburger v. United States,1 the crime of trespass is not a lesser-included offense of burglary. Therefore, we conclude that the district court did not err in refusing Smith’s requested instruction.

FACTS

On July 10, 2003, at approximately 11:00 p.m., the victim awoke to the noise of…