 of the reasonable-doubt standard... has always been dependent on how a State defines the offense that is charged in any given case." Id. at 211 n. 12, 97 S.Ct. at 2327 n. 12. The Court recently reaffirmed this principle in McMillan v. Pennsylvania, --- U.S. ----, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), stating that "in determining what facts must be proved beyond a reasonable doubt the state legislature's definition of the elements of the offense is usually dispositive."6 Id., 106 S.Ct. at 2416.
Ohio court decisions also direct us to the governing criminal statute to ascertain the elements of an offense. Under Ohio law, all crimes are statutory and "[t]he elements necessary to constitute a crime must be gathered wholly from the statute." State v. Cimpritz, 158 Ohio St. 490, 490, 110 N.E.2d 416 (1953); see also State v. Draggo, 65 Ohio St.2d 88, 91, 418 N.E.2d 1343 (1981) (per curiam).
With these principles in mind, we look to the Ohio statute which defines resisting arrest, Ohio Rev.Code Sec. 2921.33(A). That section provides:
No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another. (Emphasis added).
This statute clearly makes a "lawful arrest" an element which the state must prove to establish the crime of resisting arrest. Various Ohio appellate courts, including the court which heard Hoover's direct appeal, have recognized this. See, e.g., State v. Johnson, 6 Ohio App.3d 56, 57-59, 453 N.E.2d 1101 (1982) ("the statute does not charge an offense unless the arrest is 'lawful' "); State v. Hill, No. 85-12 (5th Dist. Ohio Ct.App. Jan. 30, 1986) (defendant could not be convicted of resisting arrest because arrest was unlawful); City of Chillicothe v. Jobe, No. 1115 (4th Dist. Ohio Ct.App. July 1, 1985) (Ohio Rev.Code Sec. 2921.33 requires proof that the arrest was lawful as a "prerequisite" for conviction); State v. Smith, No. 10-014 (11th Dist. Ohio Ct.App. Sept. 21, 1984) (the terms of Ohio Rev.Code Sec. 2921.33 requires resistance to a lawful arrest). See also State v. Kirchner, 19 Ohio Misc.2d 7, 8, 483 N.E.2d 497 (1984) ("a defendant cannot be convicted of resisting arrest unless there was a'reasonable basis' for the arrest"); State v. Paglia, 62 Ohio Misc. 7, 10, 403 N.E.2d 1216 (1979) (the specific reference in Ohio Rev.Code Sec. 2921.33 to a "lawful arrest" requires that the arresting officer have probable cause for the arrest); Coffel v. Taylor, 8 Ohio Op.3d 253 (1978) (recognizing that a conviction under Sec. 2921.33 requires that the arrest be lawful).
The trial court in the present case, however, relied on an Ohio Supreme Court decision, City of Columbus v. Harris, 44 Ohio St.2d 89, 338 N.E.2d 530 (1975) (per curiam), in refusing to instruct that the prosecution had to prove the lawfulness of Hoover's arrest as an element of resisting arrest. Harris, a very brief per curiam opinion, relies solely on another Ohio Supreme Court decision, City of Columbus v. Fraley, 41 Ohio St.2d 173, 324 N.E.2d 735 (1975). That case held in paragraph 3 of the syllabus:7.
Id. at 173, 324 N.E.2d 735.
This statement would seem to support the trial court's refusal to instruct on the element of lawful arrest. The Fraley decision, however, is inapposite. There, the defendant was convicted for violating a Columbus, Ohio city ordinance. That ordinance provided:
No person shall strike or assault a police officer or draw or lift any weapon or offer any violence against a police officer, when said police officer is in the execution of his office.
Columbus Code of Ordinances Sec. 2355.01; see Fraley, 41 Ohio St.2d at 178, 324 N.E.2d 735. Obviously, this provision differs from Ohio Rev.Code Sec. 2921.33 in that it does not mention resisting or interfering with a "lawful arrest." See State v. Johnson, 6 Ohio App.3d 56, 57-58, 453 N.E.2d 1101 (1982) (distinguishing Fraley and observing dissimilarity between the Columbus ordinance and Sec. 2921.33). Rather, the Columbus ordinance prohibits a broader scope of activity than resisting arrest, including any offer of violence against a police officer while "in the execution of his office." This would include, but is certainly not limited to, a violent act of resisting a lawful arrest. Because there is no specific lawful arrest requirement contained in the ordinance, the Ohio Supreme Court was free to interpret the ordinance as prohibiting a violent act against a police officer attempting to make any arrest, whether lawful or unlawful. The Court did not have before it, however, the issue of whether Sec. 2921.33 only proscribes resistance to a lawful arrest. Consequently, references in Fraley to the more narrow offense of resisting arrest are dicta.
That question is now squarely before this court and we conclude that Sec. 2921.33 indeed forbids only resisting a lawful arrest and does not prohibit resisting an unlawful arrest. As shown by the plain language of the statute, the Ohio legislature decided to make lawful arrest an element of resisting arrest. The courts are not in a position to alter or amend that decision. Consequently, insofar as the Ohio Supreme Court in Fraley purported to abandon the common law rule allowing a person to resist an unlawful arrest, see State v. Pembaur, 9 Ohio St.3d 136, 138, 459 N.E.2d 217 (1984) (interpreting Fraley ), it is inconsistent with the plain statutory language of Sec. 2921.33.
B.
Having determined that "lawful arrest" is an element of the Ohio crime of resisting arrest, we also find that the trial court erred as a matter of state law in refusing to instruct on that element. This refusal also amounted to a constitutional error. The trial court's failure to instruct that the state had to prove the element of lawful arrest violated the due process principle that no one may be convicted of a crime absent proof of every fact necessary to constitute the crime beyond a reasonable doubt. Winship, 397 U.S. at 364, 90 S.Ct. at 1072-73.
Although the Ohio appellate court in Hoover's direct appeal likewise found that the trial court had erred, it held that the error was harmless. The court based its analysis on its finding that Hoover's arrest was lawful and its conclusion that the lawful arrest element of resisting arrest was therefore satisfied. Both the magistrate and the district court adopted this same harmless error analysis.8 Hoover asserts that this analysis is improper, arguing that a trial court's failure to instruct on an essential element of an offense can never be considered harmless error.
C.
In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court rejected the notion that all constitutional errors necessarily require reversal of criminal convictions, id. at 22, 87 S.Ct. at 827, and set forth the principle that a constitutional error may be held to be harmless if the reviewing court concludes that it was harmless beyond a reasonable doubt. Id. at 24, 87 S.Ct. at 828. Chapman also recognized, however, "that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error...." Id. at 23, 87 S.Ct. at 827-28. (footnote omitted). Examples of constitutional errors that can never be considered harmless include the use of a coerced confession, Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), the complete denial of counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the denial of an impartial judge, Tumey v. Ohio, 273 U.S. 510, 83 S.Ct. 792, 71 L.Ed. 749 (1927). See Chapman, 386 U.S. at 23 n. 8, 87 S.Ct. at 828 n. 8. Thus, although harmless error analysis may generally be applied to constitutional errors, there are some errors so fundamental that they cannot be said to be harmless and are not subject to harmless error analysis.
There appears to be some disagreement between the federal courts of appeal as to whether a trial court's failure to instruct on an essential element of an offense may be considered harmless error.9 The leading Sixth Circuit case is Glenn v. Dallman, 686 F.2d 418 (1982). In Glenn the habeas petitioner had been found guilty of aggravated burglary under Ohio law without an instruction on one of the essential elements of the offense. The district court, on remand from this court, found that the trial court had indeed erred in failing to instruct on an element of aggravated burglary but