(dissenting) — The use of a statutory inference in these cases permitted each jury to find proof beyond a reasonable doubt of the two elements of second *113degree burglary, based on only one proven fact. The majority finds this permissive inference,3 and the corresponding jury instruction, constitutional because the inferred fact/element is supported by other evidence in the record. By merely concluding the Defendants were guilty and concluding any claimed error was harmless, the majority fails to conduct the required constitutional analysis. Viewed under the proper constitutional analysis, the majority’s conclusion as to the required connection between the proven fact and the element of the crime is erroneous and, therefore, I dissent.
The starting point for the proper analysis is recognition of the Legislature’s authority to define the elements of any crime. However, once defined, the State is required under the due process clause of the Fourteenth Amendment to prove each element beyond a reasonable doubt. See County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979); State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135, cert. denied, 115 S. Ct. 299 (1994). In reviewing a conviction, we must be satisfied the State has met its constitutional requirements. Inferences and presumptions may be used to assist the prosecution in proving the elements of the crime charged but they cannot lessen or shift the prosecution’s burden of proof on any element. Hanna, 123 Wn.2d at 710. Due process requires that when an inference is used as proof of an element of a crime, the connection between the foundational fact and the elemental fact must be rational. Ulster, 442 U.S. at 171 (Powell, J., dissenting). When an inference is the sole and sufficient proof of an element of a crime, the rational connection between the foundational fact and the elemental fact must be sufficient to support the inference beyond a reasonable doubt. Ulster, 442 U.S. at 166-*11467. In cases where the inference is only some proof of an element of a crime, the rational connection must only support the inference as being more likely than not. Ulster, 442 U.S. at 165, 167. If these two extremes were the only way in which inferences were used, no problem would exist.
Difficulties do arise, however, in cases like these, where the inference may be used as either (1) an alternate basis for proving the element (i.e., the sole and sufficient evidence of the element), or (2) only part of the proof supporting an element. The inference at issue here allows the jury to infer "intent to commit a crime” from the fact of entering or remaining unlawfully in a building. RCW 9A.52.040; WPIC 60.05. The jury instruction given on this inference goes on to state: "This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.” WPIC 60.05. The problem arising from the use of this inference instruction in these cases, and in all like cases, is the reviewing court can never determine how the jury used the inference—as the sole and sufficient proof of the elemental fact or as only part of the proof of the elemental fact. Because a reviewing court can never know how the jury treated the inference, the only way to ensure that due process is complied with is to always require the rational connection in inferences which may be used as the sole and sufficient proof of an element to be such that a jury could infer the elemental fact from the foundational fact beyond a reasonable doubt. This is the conclusion which the court of appeals reached in State v. Delmarter, 68 Wn. App. 770, 784, 845 P.2d 1340 (1993), and with which I agree.
The majority is satisfied the prosecution meets its burden in these cases because it assumes juries follow the instructions they are given, and because there is other evidence in the records at issue supporting a finding of "intent.” Majority at 109-10. First of all, this is not the proper assumption to make in these cases. It is equally valid to assume the juries in these cases rejected all other *115evidence of the Defendants’ intent and relied solely on the inference. This is the only proper assumption to make in reviewing the constitutionality of an inference. Ulster, 442 U.S. at 175 (Powell, J., dissenting).
Disregarding this improper assumption, the majority has also erred by essentially applying a sufficiency of the evidence or harmless error standard to the records before it. Because the majority finds there was sufficient evidence and thus no error in convicting these three Defendants, it does not matter whether the juries actually used the inference as the sole and sufficient evidence or only some evidence of the Defendants’ intent. This begs the question.
The problem this inference instruction creates can be rectified. First, this court could adopt the analysis laid out in Delmarter: where an inference may he used as the sole or alternate proof of an element, its rational connection "must be such that a rational trier of fact could find the elemental fact from the foundational one beyond a reasonable doubt.” Delmarter, 68 Wn. App. at 784. In the alternative, trial courts could clearly instruct the jury that the inference can not alone support a finding of the elemental fact. See Ulster, 442 U.S. at 175 (Powell, J., dissenting). Thus, the inference would neither be a sole basis nor an alternate basis for proving a required element and its rational connection need only flow more likely than not from the foundational fact. A third option would be simply to avoid giving the instruction at all. If indeed there is other evidence available in the record to prove the elemental fact, the inference instruction should not be given, and serves only to create grounds for appeals such as this.
It is this court’s duty to insure the prosecution always meets its burden of persuasion by proving every required element of a crime beyond a reasonable doubt. In cases involving permissive inferences of elements of a crime, the rational connection required should be shown beyond a reasonable doubt. The majority is content to correct any potential problems on a case-by-case basis by applying a *116sufficiency of the evidence or harmless error standard under the guise of a "permissive inference.” A more sound analytical approach is to prevent potential due process violations before they happen. This can be accomplished by always requiring the higher standard of proof, clearly instructing the jury on the proper role of an inference, or eliminating the inference instructions altogether.
In these three cases, this court has no way of knowing what the juries did or did not do, and, therefore, the error cannot be harmless. I would reverse all three convictions and remand for new trials.
For the purposes of this dissent, we will accept the majority’s label of the inference at issue as a permissive inference as correct. A permissive inference permits but does not require the jury to infer an element of an oifense. State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135, cert. denied, 115 S. Ct. 299 (1994). A mandatory inference requires a jury to find the elemental fact upon proof of the foundational fact. Hanna, 123 Wn.2d at 710. The term inference(s) as used in this dissent will only relate to permissive inferences, unless otherwise noted.