dissent">Brazil, J.,

dissenting: I respectfully dissent. In State v. Ponds, 18 Kan. App. 2d 231, 850 P.2d 280 (1993), we held that “[subsequent to Williams, the legislature eliminated the notice requirement in 21-3721 [(a)(1)(B)] in certain circumstances by adding the language ‘locked or . . . shut or secured against passage or entry. ’ Thus, in the applicable circumstances, criminal trespass is a lesser included offense of aggravated burglary.” (Emphasis added.) 18 Kan. App. 2d 231, Syl. ¶ 2.

Burglary under K.S.A. 1992 Supp. 21-3715 and criminal trespass under K.S.A. 1992 Supp. 21-3721 both involve entering into or upon or remaining in or upon structures or land without authority. In addition, criminal trespass under K.S.A. 1992 Supp. 21-3721(a)(l)(B) requires posted notice or locked or secured premises. The majority concludes that the additional statutory language “merely provides an alternative method for proving constructive notice.” Slip opinion Syl. ¶ 1.

It can also be argued that entering a locked building is evidence of entering into pi'emises without' authority when proving a crime of burglary or criminal trespass. In the burglary charge in this case, the State had to prove that Rush entered a building without authority. The evidence was that Rush was found near a pry bar in the building where a locked door had been kicked in. There were pry bar and kick marks on the storeroom door, as well as pry bar marks on the front door and a first floor window. All of this was evidence in the burglary case that Rush was in the building without authority. Likewise, the same evidence would support a lesser included crime of criminal trespass into locked premises under K.S.A. 1992 Supp. 21-3721(a)(l)(B).

As in Ponds, I would find there was evidence to support the giving of an instruction on the lesser included crime of criminal trespass. I would reverse and remand for a new trial.

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