State v. Sangster, 299 N.W.2d 661 (Iowa 1980). · Go Syfert
State v. Sangster, 299 N.W.2d 661 (Iowa 1980). Cases Citing This Book View Copy Cite
“the lesser offense is necessarily included in the greater offense if it is impossible to commit the greater without also committing the lesser.”
103 citation events (24 in the last 25 years) across 3 distinct courts.
Strongest positive: State of Iowa v. Andre Rockingham (iowactapp, 2016-11-09)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 49 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) State of Iowa v. Andre Rockingham
Iowa Ct. App. · 2016 · quote attribution · 1 verbatim quote · confidence high
efendant's intent to commit theft could reasonably be inferred from the evidence of surreptitious entry and other circumstances.
discussed Cited as authority (verbatim quote) State v. Jeffries
Iowa · 1988 · signal: see · quote attribution · 1 verbatim quote · confidence high
when the statute defines an offense alternatively, the relevant definition is the one for the offense involved in the particular prosecution.
discussed Cited as authority (verbatim quote) State v. Martin
Iowa · 1983 · signal: see · quote attribution · 1 verbatim quote · confidence high
the elements of an offense are determined by the statute defining it_
discussed Cited as authority (verbatim quote) State v. Mead (2×) also: Cited as authority (rule)
Iowa · 1982 · quote attribution · 1 verbatim quote · confidence high
the lesser offense is necessarily included in the greater offense if it is impossible to commit the greater without also committing the lesser.
discussed Cited as authority (rule) State of Iowa v. Jennifer Elaine Archer
Iowa Ct. App. · 2025 · confidence medium
The unchallenged jury instructions only required the jury to find that Archer entered or attempted to enter the designated occupied structures “with the specific intent to commit a theft.” See State v. Schiebout, 944 N.W.2d 666 , 671 (Iowa 2020) (“Jury instructions, when not objected to, become the law of the case for purposes of appellate review for sufficiency-of-evidence claims.”); see also Iowa Code § 713.1 (defining burglary); State v. Ernst, 954 N.W.2d 50 , 56 (Iowa 2021) (stating a defendant does not have to complete a theft to be found guilty of attempted burglary). “[I]nten…
cited Cited as authority (rule) State of Iowa v. Ler He Gay
Iowa Ct. App. · 2021 · confidence medium
One can reasonably infer an intent to commit theft “from the evidence of surreptitious entry and other circumstances.” Id. at 55 (quoting State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980)).
discussed Cited as authority (rule) State of Iowa v. Anthony Frank Ernst
Iowa · 2021 · confidence medium
We first note that intent to commit theft can “reasonably be inferred from the evidence of surreptitious entry and other circumstances.” State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); see also State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000) (en banc) (“An intent to commit theft may be inferred from an actual breaking and entering of a building which contains things of value.”); State v. Erving, 346 N.W.2d 833, 836 (Iowa 1984) (“[E]xperience teaches that, in the great majority of cases of unlawful breaking and entering, the act [done is] with intent to steal.” (quoting State v…
discussed Cited as authority (rule) State of Iowa v. Anthony Frank Ernst
Iowa · 2021 · confidence medium
We first note that intent to commit theft can “reasonably be inferred from the evidence of surreptitious entry and other circumstances.” State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); see also State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000) (en banc) (“An intent to commit theft may be inferred from an actual breaking and entering of a building which contains things of value.”); State v. Erving, 346 N.W.2d 833, 836 (Iowa 1984) (“[E]xperience teaches that, in the great majority of cases of unlawful breaking and entering, the act [done is] with intent to steal.” (quoting State v…
discussed Cited as authority (rule) State of Iowa v. David Howard Rooney (2×)
Iowa · 2015 · confidence medium
See, e.g., Sanford, 814 N.W.2d at 616 (noting vehicle clearly met the first prong and thus the pivotal issue of the case turned on the second prong); State v. Sylvester, 331 N.W.2d 130 , 131–32 (Iowa 1983) (applying two-prong test to delivery truck); State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (holding evidence was sufficient when garage was used to store automobile).
examined Cited as authority (rule) State of Iowa v. David Howard Rooney (4×)
Iowa · 2015 · confidence medium
See, e.g., Sanford, 814 N.W.2d at 616 (noting vehicle clearly met the first prong and thus the pivotal issue of the case turned on the second prong); State v. Sylvester, 331 N.W.2d 130, 131-32 (Iowa 1983) (applying two-prong test to delivery truck); State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (holding evidence was sufficient when garage was used to store automobile).
discussed Cited as authority (rule) Amended June 26, 2015 State of Iowa v. David Howard Rooney (2×)
Iowa · 2015 · confidence medium
See, e.g., Sanford, 814 N.W.2d at 616 (noting vehicle clearly met the first prong and thus the pivotal issue of the case turned on the second prong); State v. Sylvester, 331 N.W.2d 130 , 131–32 (Iowa 1983) (applying two-prong test to delivery truck); State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (holding evidence was sufficient when garage was used to store automobile).
discussed Cited as authority (rule) State of Iowa v. David Howard Rooney
Iowa Ct. App. · 2014 · confidence medium
This means that the pivotal issue in this case is whether the second prong of the definition found in section 702.12 has been satisfied”); State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (holding evidence was sufficient where garage was used to store automobile); State v. Sylvester, 331 N.W.2d 130 (Iowa 1983) (applying two-pronged test to delivery truck); Burns, 80 N.W. at 545 - 46 (applying two-prong test to a “building, to wit, a printing office” and holding evidence sufficient where goods, merchandise, and valuable things were kept for sale”); State v. Dixon, No. 11-1750, 2012 WL…
discussed Cited as authority (rule) State of Iowa v. Jonas Dorian Neiderbach
Iowa · 2013 · confidence medium
An offense meets the legal test if “ ‘[t]he lesser offense [is] composed solely of some but not all elements of the greater crime.’” State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (quoting State v. Furnald, 263 N.W.2d 751, 752 (Iowa 1978)).
discussed Cited as authority (rule) State of Iowa v. Christopher Craig Thompson
Iowa · 2013 · confidence medium
An offense meets the legal test if “ ‘[t]he lesser offense [is] composed solely of some but not all elements of the greater crime.’ ” State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (quoting State v. Furnald, 263 N.W.2d 751, 752 (Iowa 1978)).
cited Cited as authority (rule) State v. Wells
Iowa · 2001 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
cited Cited as authority (rule) State v. Oetken
Iowa · 2000 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); State v. Clay, 213 N.W.2d 473, 480 (Iowa 1973).
examined Cited as authority (rule) State v. Waller (4×) also: Cited "see"
Iowa · 1990 · confidence medium
State v. Sangster, 299 N.W.2d 661, 664 (Iowa 1980).
discussed Cited as authority (rule) State v. Adcock (2×)
Iowa Ct. App. · 1988 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
cited Cited as authority (rule) State v. Jackson
Iowa · 1988 · confidence medium
Id. at 835 (citing State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980)).
discussed Cited as authority (rule) State v. Swanson (2×)
Iowa Ct. App. · 1988 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); State v. Furnald, 263 N.W.2d 751, 752 (Iowa 1978).
discussed Cited as authority (rule) State v. Luckett (2×)
Iowa · 1986 · confidence medium
See, e.g., State v. Johnson, 328 N.W.2d 918, 920 (Iowa 1983) (where court found “ample evidence” of assault, trial court erred in refusing to submit assault as lesser included offense in robbery case); State v. Wales, 325 N.W.2d 87, 89 (Iowa 1982) (where burglary was alleged to have been committed in either of two ways, only one of which included criminal trespass as a lesser included offense, and evidence was sufficient to support a finding on either alternative, defendant entitled to submission of lesser included offense); State v. Sangster, 299 N.W.2d 661, 664 (Iowa 1980) (in second-deg…
cited Cited as authority (rule) State v. Mateer
Iowa · 1986 · confidence medium
State v. Lampman, 345 N.W.2d 142, 143 (Iowa 1984); State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
examined Cited as authority (rule) State v. Phillips (3×)
Iowa Ct. App. · 1985 · confidence medium
The supreme court has discussed the elements of each offense in State v. Sangster, 299 N.W.2d 661, 664 (Iowa 1980) where it determined that criminal trespass was a lesser included offense of burglary.
discussed Cited as authority (rule) Amin v. State (2×)
Wyo. · 1985 · confidence medium
The Supreme Court of Iowa, in State v. Sangster, Iowa, 299 N.W.2d 661, 663-664 (1980), framed the test as follows: "The elements of an offense are determined by the statute defining it rather than by the charge or the evidence. [Citation.] When the statute defines an offense alternatively, the relevant definition is the one for the offense involved in the particular prosecution. [Citations.] "When the elements of the major offense are identified, the next inquiry is whether the elements of the lesser offense are included in them.
cited Cited as authority (rule) State v. Hill
Iowa Ct. App. · 1984 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
cited Cited as authority (rule) State v. Dean
Iowa · 1984 · confidence medium
Newman, 313 N.W.2d at 486 (quoting State v. Sangster, 299 N.W.2d 661, 662-63 (Iowa 1980)).
discussed Cited as authority (rule) State v. Lampman (2×)
Iowa · 1984 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
cited Cited as authority (rule) State v. Goff
Iowa · 1983 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
cited Cited as authority (rule) State v. Ware
Iowa · 1983 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); see Iowa R.Crim.P. 6(3), 21(3).
discussed Cited as authority (rule) State v. Chase
Iowa · 1983 · confidence medium
Initially, we note that it is settled that simple trespass is a lesser and included offense of burglary when burglary is alleged and proved in its entry alternative, State v. Sangster, 299 N.W.2d 661, 664 (Iowa 1980), or when it is submitted in both the breaking and entry alternative.
cited Cited as authority (rule) State v. Johnson
Iowa · 1983 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
cited Cited as authority (rule) State v. Newman
Iowa · 1982 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1981).
discussed Cited as authority (rule) State v. Wales
Iowa · 1982 · confidence medium
In State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980), we reiterated our adherence to the two-prong test for deciding if one offense is included within another: The standards for determining when an offense is included in another are the same now as when [State v. Furnald, 263 N.W.2d 751 (Iowa 1978)] was decided.
cited Cited as authority (rule) State v. Folck
Iowa · 1982 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
cited Cited as authority (rule) State v. Dvorsky
Iowa · 1982 · confidence medium
See Webb, 313 N.W.2d at 552 ; State v. Sangster, 299 N.W.2d 661, 663-64 (Iowa 1980).
discussed Cited as authority (rule) State v. Whitfield (2×) also: Cited "see"
Iowa · 1982 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
discussed Cited as authority (rule) State v. Newman (2×)
Iowa · 1981 · confidence medium
State v. Sangster, 299 N.W.2d 661, 662-63 (Iowa 1980).
examined Cited as authority (rule) State v. Webb (3×) also: Cited "see"
Iowa · 1981 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980).
cited Cited as authority (rule) State v. Tague
Iowa · 1981 · confidence medium
A recent example is State v. Sangster, 299 N.W.2d 661, 663-64 (Iowa 1980).
cited Cited as authority (rule) State v. Smith
Iowa · 1981 · confidence medium
State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); State v. Hochmuth, 256 Iowa 442, 446-48 , 127 N.W.2d 658, 659-60 (1964).
discussed Cited as authority (rule) State v. Allen (2×)
Iowa · 1981 · confidence medium
Principles for making this determination were reviewed and reiterated recently in State v. Sangster, 299 N.W.2d 661, 663-64 (Iowa 1980).
cited Cited as authority (rule) State v. Holtz
Iowa · 1981 · confidence medium
The elements of a burglary charge under section 713.1, The Code, were discussed in State v. Sangster, 299 N.W.2d 661, 662 (Iowa 1980), and that discussion need not be repeated here.
discussed Cited "see" State of Iowa v. Tommy Dean Sanders, Jr.
Iowa Ct. App. · 2020 · signal: see · confidence high
See State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (noting the “defendant’s intent to commit theft could reasonably be inferred from the evidence of surreptitious entry and other circumstances”).
discussed Cited "see" State of Iowa v. Gary Michael Fortune
Iowa Ct. App. · 2017 · signal: see · confidence high
See State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980) (affirming defendant’s conviction for burglary where defendant surreptitiously entered private garage).
discussed Cited "see" State v. Trainer
Iowa Ct. App. · 2008 · signal: see · confidence high
See State v. Sangster, 299 N.W.2d 661, 664 (Iowa 1980) (holding that criminal trespass is a lesser-included offense of second-degree burglary); see also Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180, 182 , 76 L.Ed. 306, 309 (1932) (stating that the elements of two offenses are compared in order to determine whether they are separate offenses).
discussed Cited "see" State v. Mount (2×) also: Cited "see, e.g."
Iowa · 1988 · signal: see · confidence high
See Sangster, 299 N.W.2d at 663 ; State v. Furnald, 263 N.W.2d 751, 752 (Iowa 1978).
discussed Cited "see, e.g." State of Iowa v. Derek Krieger
Iowa Ct. App. · 2019 · signal: see also · confidence medium
(Iowa 1981). 12 public.”13 See State v. Waller, 450 N.W.2d 864, 866 (Iowa 1990) (explaining criminal trespass element of entry upon property of another “corresponds to entry into an occupied structure not open to the public”); see also State v. Sangster, 299 N.W.2d 661, 664 (Iowa 1980) (holding “absence of authority is a common element in the two offenses”).
discussed Cited "see, e.g." State of Iowa v. Shane Michael Sires
Iowa Ct. App. · 2015 · signal: see, e.g. · confidence medium
See, e.g., State v. Sangster, 299 N.W.2d 661, 662-63 (Iowa 1980) (affirming defendant’s conviction where the defendant surreptitiously entered a private garage, stole no items, and his shoes matched the wet shoeprints on the garage floor); State v. Curry, No. 10-2009, 2013 WL 988794 , at *1-2 (Iowa Ct. App. Mar. 13, 2013) (affirming burglary conviction where the defendant broke into the structure and was found hiding nearby despite the absence of evidence anything was taken from structure); Goodenough, 2008 WL 2746334, at *3 (affirming conviction where the defendant broke into structure cont…
cited Cited "see, e.g." State v. Harlow
Iowa · 1982 · signal: see also · confidence low
See also State v. Sangster, 299 N.W.2d 661 (Iowa 1980).
Retrieving the full opinion text from the archive…
STATE of Iowa, Appellee,
v.
William E. SANGSTER, Appellant
63904.
Supreme Court of Iowa.
Dec 17, 1980.
299 N.W.2d 661
Randy J. Hohenadel of Newport, Fortini & Hohenadel, Davenport, for appellant., Thomas J. Miller, Atty. Gen., Richard L. Cleland, Asst. Atty. Gen., and Stephen L. Schalk, Asst. County Atty., for appellee.
Reynoldson, Harris, McCormick, Allbee, Larson.
Cited by 57 opinions  |  Published
McCORMICK, Justice.

Defendant William E. Sangster appeals his conviction by jury and sentence for burglary in the second degree in violation of section 713.3, The Code. He challenges the sufficiency of the evidence and the refusal of the trial court to submit trespass as a lesser included offense. We reverse and remand on the lesser included offense issue.

I. Sufficiency of the evidence. Defendant moved for directed verdict at the close of the evidence. He alleged the evidence was insufficient to permit submission of the case to the jury. The trial court overruled the motion, and defendant assigns the ruling as error.

This assignment is reviewed under familiar principles which need not be repeated here. See State v. Holderness, 293 N.W.2d 226, 235 (Iowa 1980). In applying those principles, we draw no distinction between the probative value of direct and circumstantial evidence.

Defendant was charged with burglary of ¾ private garage adjacent to a residence at 1935 Perry Street in Davenport. Substantial evidence supports the following findings. In the evening of March 1, 1979, two Davenport police officers had defendant and Eugene Watson under surveillance in a residential neighborhood. Defendant and Watson separated to walk on opposite sides of the street, each man looking into cars parked on his side. When they arrived at 1935 Perry Street, Watson went to the front door, knocked once, opened the screen door, and then bent over briefly at the front door. He left there when some young people crossed the street in the direction of the premises. Defendant remained on the sidewalk during this time, looking up and down the street. He and Watson left the scene for a few minutes but returned when the people who had crossed the street were gone. Defendant and Watson walked to the garage door. Defendant entered the garage while Watson remained outside. The officers saw the light of a flashlight while defendant was in the garage. They decided to arrest the two men. As they drove toward the site, defendant ran out of the garage. He and Watson were then arrested.

In a search following the arrest, a flashlight was found in «defendant’s possession. The pattern of his shoes matched wet shoe-prints discovered on the floor of the garage. Watson had a screwdriver which matched a pry mark on the front door jam of the home.

This court has not delineated the elements of burglary under the definition in section 713.1. They are, however, plainly spelled out in the statute. Three alternative offenses are defined. They have two elements in common. The common elements are the requisite intent and absence of authority. The requisite intent is “the intent to commit a felony, assault or theft [in the place involved].” Id. The requisite absence of authority is “no right, license or privilege” to do the act involved. Id. When those elements exist, a person is guilty of burglary who (1) “enters an occupied structure or area enclosed in such a manner as to provide a place for the keep[*663] ing of valuable property secure from theft or criminal mischief, such occupied structure or place not being open to the public,” or (2) “who remains therein after it is closed to the public or after the person’s right, license or privilege to be there has expired,” or (3) “who breaks an occupied structure of other place where anything of value is kept.... Id.

Burglary in the first degree requires proof of an additional element specified in section 713.2. All other burglary is burglary in the second degree. § 713.3.

In the present case, defendant was charged with burglary in the second degree. The State sought to establish his guilt under the first alternative definition of the offense. It alleged he entered the garage with intent to commit theft. In asserting the trial court erred in overruling his motion for directed verdict, defendant contends the evidence was insufficient for the jury to find that he entered the garage, that the garage was the kind of structure or area specified in the statute, and that he possessed the required intent.

We find each element was supported by sufficient evidence. It is true the officers did not actually see defendant enter the garage. However, they observed him leave it. This sufficiently proved his entry. Moreover, substantial evidence tended to show the garage was an “occupied structure.” As defined in section 702.12, an occupied structure includes a structure adapted “for the storage or safekeeping of anything of value.” The evidence showed an automobile was stored in the garage. The structure was thus adapted for the storage of property having value. Finally, defendant’s intent to commit theft could reasonably be inferred from the evidence of surreptitious entry and other circumstances. See State v. Clay, 213 N.W.2d 473, 480 (Iowa 1973).

We find no merit in defendant’s challenge to the sufficiency of the evidence.

II. The lesser included offense issue. In State v. Furnald, 263 N.W.2d 751 (Iowa 1978), we held that criminal trespass as defined in sections 729.1 and 729.2, The Code 1975, was not a lesser included offense of breaking and entering as defined in section 708.8, The Code 1975 (now repealed). We have not decided, however, whether criminal trespass is a lesser included offense of burglary as the offenses are defined in the present Code. The issue was presented but not reached in State v. Rouse, 290 N.W.2d 911 (Iowa 1980). It is squarely before us in this case.

The standards for determining when an offense is included in another are the same now as when Furnald was decided. The principles applied there apply here. Two tests must be satisfied:

The first is the legal or element test. The lesser offense must be composed solely of some but not all elements of the greater crime. The second, “factual” test is an ad hoc determination whether there is a factual basis in the record for submitting the included offense to the jury.

Furnald, 263 N.W.2d at 752.

To satisfy the legal test, the minor offense must be an elementary part of the major offense. Id. The lesser offense is necessarily included in the greater offense if it is impossible to commit the greater without also committing the lesser. State v. Redmon, 244 N.W.2d 792, 801 (Iowa 1976). If the lesser offense contains an element not required for the greater offense, the lesser cannot be included in the greater. This is because it would be possible in that situation to commit the greater without also having committed the lesser. See C. Wright, Federal Practice and Procedure § 515 at 374-75 (1969).

The elements of an offense are determined by the statute defining it rather than by the charge or the evidence. Red-mon, 244 N.W.2d at 801. When the statute defines an offense alternatively, the relevant definition is the one for the offense involved in the particular prosecution. State v. Young, 293 N.W.2d 5, 7 (Iowa 1980); Furnald, 263 N.W.2d at 754.

When the elements of the major offense are identified, the next inquiry is[*664] whether the elements of the lesser offense are included in them. For that purpose, it is necessary to identify the elements of the lesser offense. If the minor offense is defined alternatively, the offense is included if any of the alternatives are included. Id. Because an offense is necessarily included in another if it is an elementary part of the greater, an offense is necessarily included if one of its statutory definitions makes it an elementary part of a greater offense. When so included, the major offense cannot be committed without also committing the minor offense.

We must apply the legal test to the burglary charge in the present ease. The State selected only one of the burglary alternatives as the basis of the charge. We have identified the elements of that offense. Criminal trespass is defined in section 716.-7(2). It has four alternative statutory definitions. Our inquiry is whether a person who commits burglary under the burglary alternative involved in this case must also have committed criminal trespass under one of the statutory definitions of that offense.

Under section 716.7(2)(a), criminal trespass is committed when a person (1) “[enters] upon or in property” (2) “without legal justification or without the implied or actual permission of the owner, lessee, or person in lawful possession,” (3) “with the intent to commit a public offense. ...” “Property” is defined in section 716.7(1) as “any land, dwelling, building, conveyance, vehicle, or other temporary or permanent structure whether publicly or privately owned.” Thus a person who enters “an occupied structure or area enclosed in such a manner as to provide a place for the keeping of valuable property secure from theft or criminal mischief, such occupied structure or place not being open to the public,” as required for the relevant burglary offense, would necessarily enter upon or in property within the meaning of criminal trespass under section 716.7(2)(a). This is true, of course, even though the entry upon or in property necessary for trespass would not necessarily be an entry to the kind of property required for burglary. Moreover, absence of authority is a common element in the two offenses. Each also has an intent element. Although the intent elements differ, the intent for criminal trespass is a constituent of the intent element in burglary. The trespass offense merely requires an intent to commit a public offense whereas the burglary offense requires an intent to commit a particular kind of public offense, “a felony, assault or theft.” § 713.1.

This analysis demonstrates that criminal trespass under section 716.7(2)(a) is an elementary part of the burglary definition involved in the present case. The criminal trespass elements are entirely included in the burglary elements. It would be impossible for a person to commit the relevant burglary offense without also committing criminal trespass as defined in section 716.-7(2)(a). Therefore criminal trespass, as thus defined, passes the legal test as an included offense of the burglary offense.

The same conclusion has been reached under analogous statutes in other jurisdictions. See Block v. State, 604 P.2d 338 (Nev.1979); People v. India, 67 A.D.2d 488, 415 N.Y.S.2d 837 (1979); Day v. State, 532 S.W.2d 302 (Tex.Crim.App.1975).

Criminal trespass also passes the factual test. Under the evidence in this case, a rational jury could find the defendant guilty of criminal trespass. For example, the jury might find a failure of proof on the intent necessary for burglary but sufficient proof to establish the intent and other elements of criminal trespass.

Because criminal trespass satisfied both the legal and factual tests as an included offense, the trial court erred in overruling defendant’s objection to the failure to submit it. The case must be reversed and remanded for new trial.

REVERSED AND REMANDED.