dissenting.
I dissent.
The evidence presented to the trial court is insufficient to prove, beyond a reasonable doubt, that Batie attempted to break and enter the residence with the intent to commit theft.
In order to sustain a conviction for attempted burglary, the State's evidence must show that Batie committed a substan*1322tial step towards (1) breaking; (2) entering; (8) the dwelling of Maxine Hill and David Helm; (4) with the intent to commit theft.
The evidence most favorable to the State shows that at approximately 11:80 p.m. on February 9, 1983 Batie and co-defendant Jerry Bartlett (Bartlett) alternated knocking at the front door of Maxine Hill's and David Helm's residence in Indianapolis. After continuing in this manner for about half an hour, Batie and Bartlett proceeded to break open the front door. The evidence also shows that upon breaking open the front door, Batie and Bartlett were confronted by Mr. Helm, who was pointing a gun at them,. At about the same time, police officers arrived whereupon both men fled. Both were subsequently captured within a short distance and returned to the scene where they were identified by Ms. Hill and Mr. Helm as the two men who had forced open the door of the residence.
I believe this evidence fails to establish Batie's intent to commit theft. The matter of intent being "a mental state of the actor," the trial court must resort to reasonable inferences based upon examination of underlying facts and surrounding cireum-stances. Lisenko v. State, (1976) 265 Ind. 488, 355 N.E.2d 841, 843, quoting Farno v. State, (1974) 159 Ind.App. 627, 308 N.E.2d 724 at 725. See Rowan v. State, (1982) Ind., 431 N.E.2d 805. The relevant facts and surrounding cireumstances in this case show merely that Batie and Bartlett forcibly kicked open the front door of the residence, fled upon being confronted by Mr. Helm, and were subsequently captured in the general vicinity of Mr. Helm's residence.
Although a breaking and entering under the facts here presented may be evidence of some unlawful purpose, whether that unlawful purpose or intent is to steal or to commit some other offense is a matter to be inferred from all the circumstances presented in addition to the breaking and entering.
Under the proper circumstances, felonious intent may be inferred from the time, manner, and force of the entry. The case most often cited for this proposition is Lisenko v. State, supra. Lisenko involved a forcible entry at approximately 4:00 a.m. In affirming the conviction, the supreme court there stated that absent an allegation of lawful intent, guilt could be inferred from the time, manner and force of entry coupled with defendant's statement to police at the time of apprehension. Id. 355 N.E.2d at 843. Similarly, where evidence of breaking and entering was present along with evidence that the interior of a house was ransacked, felonious intent to commit theft was established. Jones v. State, (1983) Ind., 456 N.E.2d 1025. See Gaunt v. State, (1983) Ind., 457 N.E.2d 211 (evidence of breaking and entering and possession of stolen goods); Blackmon v. State, (1983) Ind., 455 N.E.2d 586 (entrance through an unlocked window plus stacking together of certain articles near an exit); Blow v. State, (1983) Ind., 445 N.E.2d 1369 (breaking open of apartment doors, possession of tire iron at the scene plus flight sufficient to sustain conviction for attempted burglary); Carter v. State, (1976) 265 Ind. 535, 356 N.E.2d 220 (breaking and entering while armed with a revolver). The supreme court in Lisenko did not discuss the precise issue of whether evidence of an unlawful breaking and entering alone may give rise to the inference that the target crime was theft, as opposed to the lesser crime of criminal trespass, or of criminal mischief,1
In discussing the issue of specific intent, however, the supreme court has clearly stated that "the mere breaking and entering of a dwelling alone does not constitute evidence of intent to commit a felony." Anderson v. State, (1981) Ind., 426 N.E.2d 674, 676 (overruled by Rhyne v. State, (1983) Ind., 446 N.E.2d 970, on the question of sentencing procedure for an habitual offender). Accord, Meadows v. State, (1981) Ind., 428 N.E.2d 1232. See Vaughan v. State, (1983) Ind.App., 446 N.E.2d 1. Furthermore, the court noted that even *1323those "indirect inferences permitted in Carter and Lisenko" constituted "cireumstan-tial evidence that goes beyond the mere fact of breaking and entering and may support the intent element." Id. at 676. Thus, a finding of breaking and entering, without more, does not support the existence of felonious intent much less specific intent to commit theft. The fact that Batie and his companion kicked in a door does not prove, beyond a reasonable doubt, that they intended to steal from within the premises.
The only other cireumstance present in this case is the defendant's flight immediately after kicking open the front door. Although flight is generally admissible evidence of a consciousness of guilt, Short v. State, (1982) Ind., 443 N.E.2d 298; Manna v. State, (1982) Ind., 440 N.E.2d 473; Bailey v. State, (1982) Ind.App., 438 N.E.2d 22, that alone is insufficient to prove that the consciousness of guilt arose as a result of Batie's intent to commit theft and not as a result of his fear of being apprehended on a charge of criminal trespass. See Faulkner v. State, (1973) 260 Ind. 82, 292 N.E.2d 594 (overruled by Carter v. State, supra, on a separable issue). Therefore, this particular factual pattern might conceivably support a charge of criminal trespass or criminal mischief. For reasons stated, however, I cannot conclude that the State's evidence gave rise to an inference of felonious intent to commit theft.
It is entirely within the province of the legislature to make the mere breaking and entering of a dwelling punishable as a felony offense, or to enhance the penalty for criminal trespass and criminal mischief, neither of which it has chosen to do. The legislature clearly requires that the State prove each element of the charged offense. Evidence of the breaking and entering of a dwelling, without more, is insufficient to prove that the defendant, John Batie, possessed the requisite intent to commit theft within said dwelling.
The defendant's conviction for attempted burglary should be reversed.
. Ind.Code 35-43-2-2 and 35-43-1-2, respectively.