(dissenting) — For the reasons expressed herein and in my dissent in State v. Chelly, 32 Wn. App. 916, 651 P.2d 759 (1982), I disagree with the majority. MacReady was found asleep in the basement of the home of one of his sister's girlfriends. He was intoxicated. A glass paperweight valued at $1.50, which had been on the sill of the window through which he entered the house, was found in his pocket.
The information charged, in the language of the burglary *935statute, that he "did enter and remain unlawfully in a building . . . with intent to commit a crime against a person or property therein." Because of the inference of intent statute, RCW 9A.52.040, which allows the jury to infer intent from the illegal entry, MacReady had to be prepared to defend against evidence of intent to commit theft, rape, assault, arson, indeed any crime that can be committed "against a person or property therein." The failure of the court to instruct the jury as to the elements of various underlying intended crimes made it impossible for the jury to find beyond a reasonable doubt, even with the aid of the statutory inference, that MacReady intended "to commit a crime against a person or property therein." See Chelly (Ringold, J., dissenting).
I also disagree with the majority's holding that the giving of the inference of intent statute as an instruction was not error.3 Although the majority correctly finds the inference of intent statute constitutional, it fails to reach MacReady's contention that the trial court erred by failing to explain the instruction to the jury.
MacReady excepted to the giving of the inference of intent instruction on the grounds that it would be misinterpreted by the jury. This fear was borne out when, during deliberations, the jury sent a note to the trial judge asking the court to clarify the instruction: "Do the words 'may be inferred' mean — 'will be' [?] [I]f the defense did not present *936evidence, explaining the entering, do we have to infer criminal intent[?]" The court replied, "You must answer these questions from the instructions given."
Ordinarily, the decision to instruct in statutory language is within the trial court's discretion, State v. Johnson, 7 Wn. App. 527, 500 P.2d 788 (1972), aff'd, 82 Wn.2d 156, 508 P.2d 1028 (1973), and an explanatory instruction is not generally necessary if the statutory language is reasonably clear. State v. Humphries, 21 Wn. App. 405, 586 P.2d 130 (1978). The majority attempts to avoid the problem of the actual jury confusion in this case by holding that the words "may be inferred" are words of common understanding, "reasonably clear and . . . not misleading to people of ordinary intelligence" so that no explanatory instruction was necessary.
The difference between "infer" and "presume," however, is one more readily apparent to lawyers than to jurors. Sandstrom v. Montana, 442 U.S. 510, 528, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979) (Rehnquist, J., concurring). A permissive inference, though the "least restrictive form of presumption," is nevertheless a presumption, and is always subject to possible jury misinterpretation if embodied in an instruction without an adequate explanation. State v. Savage, 94 Wn.2d 569, 574, 618 P.2d 82 (1980); Sandstrom v. Montana, supra.
Whenever a presumption is employed in a criminal case, it is essential that the jury instructions fully and adequately explain the nature and operation of the presumption to the jury. See Sandstrom v. Montana, supra at 514-19; State v. Roberts [88 Wn.2d 337, 341, 562 P.2d 1259 (1977)]. The jury instructions must, therefore, specifically inform the jury that the defendant bears no more than a burden of producing "some evidence" to rebut the presumed fact, and that the ultimate burden of proving every element of the offense beyond a reasonable doubt must always remain upon the prosecution. State v. Bishop [90 Wn.2d 185, 188-89, 580 P.2d 259 (1978)]; State v. Roberts, supra at 340-41. The jury instructions must also expressly instruct the jury that it is always free to reject the presumption even if the defendant *937fails to produce evidence to the contrary of the presumed fact. State v. Roberts, supra at 341-43; State v. Odom [83 Wn.2d 541, 545, 520 P.2d 152 (1974)] . . .
(Italics mine.) State v. Savage, supra at 576.4
In State v. Caldwell, 94 Wn.2d 614, 618 P.2d 508 (1980), the Supreme Court held that general instructions on the presumption of innocence and the State's burden of proof beyond a reasonable doubt are insufficient to explain the application of a presumption, citing Sandstrom v. Montana, supra. In State v. Holcomb, 31 Wn. App. 398, 402, 642 P.2d 407 (1982), another division of this court strongly implied that an instruction was vulnerable to attack under Roberts and Savage even though the instruction at issue stated, "'This presumption is not binding upon you and it is for you to determine what weight, if any, such presumption is to be given.'" The cases cited by the majority are of questionable value in determining the adequacy of the inference of intent instruction.
It is highly probable that without an explanatory *938instruction one or more jurors interpreted the inference of intent instruction as a mandatory rebuttable presumption5 rather than as a permissive inference. This danger was recognized in State v. Deiro, 20 Wn. App. 637, 640-41, 581 P.2d 1079 (1978), where the court observed
the second part of the instruction could confuse a jury under different circumstances. Similar language was held to be a necessary part of an instruction based upon the superseded [presumption of intent] statute. State v. Briand, 15 Wn. App. 352, 549 P.2d 29 (1976). However, when this language is added to an "inference" instruction based upon RCW 9A.52.040, it could be read to imply that intent is to be "presumed" in absence of "evidence satisfactory to the jury."...
The qualifying language, added to the inference instruction, could, in some cases, emphasize the fact that there is no evidence to explain a defendant's intent when unlawfully entering or remaining in a building. When there is no such evidence, the better rule would be to delete the language.
(Footnote omitted.)
In 1977, the Washington Supreme Court Committee on Jury Instructions dealt with this problem by recommending that no instruction be given on the statutory inference of intent:
The committee feels that it may be error to give an instruction on the inference set out in RCW 9A.52.040.
. . . The matter of proving a specific intent by circumstantial evidence is better left to argument of counsel.
Comment, WPIC 60.05, 11 Wash. Prac. 304 (1977). Recently the same committee approved the following instruction, with the comment that the bracketed portion *939should be used "only if there is evidence on that issue."
A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein [unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent.] This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
(Italics mine.) WPIC 60.05, 11 Wash. Prac. 104 (Supp. 1982). While the highlighted part of this instruction goes a long way toward satisfying the requirements of State v. Savage, supra, it may not be entirely sufficient. See State v. Holcomb, supra.
The inference of intent statute allows the State, in an appropriate case, to survive a motion for dismissal based on lack of evidence of the specific crime the defendant intended to commit. An instruction in the language of the statute, however, comes dangerously close to being a comment on both the evidence of unlawful entry and any evidence tending to explain the defendant's presence. The jury need not be instructed by the court as to which inferences may or may not be made in its deliberations. This is better left to argument of counsel under the general instruction on circumstantial evidence. See WPIC 5.01.
The inference of intent instruction given in this case failed to expressly advise the jury that it need not infer intent from the unlawful entry if it chooses not to. State v. Savage, supra. The giving of this instruction over Mac-Ready's exception was therefore erroneous. Following the jury's request for assistance, their confusion was obvious. The trial court could then have corrected the error by submitting an instruction that the jury "is always free to reject the presumption [or inference] even if the defendant fails to produce evidence to the contrary of the presumed fact." Savage, at 576.
By excusing the error and holding that the inference of intent instruction was not misleading, the majority ignores *940reality. On the meager evidence before it, the jury could have presumed intent rather than finding it beyond a reasonable doubt. I would reverse and remand for a new trial.
Reconsideration denied October 8, 1982.
Review granted by Supreme Court December 17, 1982.
RCW 9A.52.040 provides:
Inference of intent. In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.
The court's instruction 5 provided:
Any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to you to have been made without criminal intent.
It should be noted that the omission of the word "such” from the court's instruction apparently requires the defendant to negate all criminal intent, not merely "intent to commit a crime against a person or property therein."
Although State v. Savage, 94 Wn.2d 569, 618 P.2d 82 (1980), had not yet been decided at the time of MacReady's trial, the requirement that a jury be made to understand the working of a presumption antedates the decision in that case. Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979) was brought to the trial court's attention when MacReady excepted to the inference of intent instruction. The requirements of State v. Savage, supra, are also established in earlier Washington cases. See, e.g., State v. Person, 56 Wn.2d 283, 352 P.2d 189, 81 A.L.R.2d 1088 (1960); State v. Odom, 83 Wn.2d 541, 520 P.2d 152 (1974); State v. Roberts, 88 Wn.2d 337, 562 P.2d 1259 (1977).
The majority urges that the differences between mandatory and permissive presumptions justify requiring explanatory instructions for the former, but not the latter, and attempt to distinguish State v. Savage, supra, for that reason. While this distinction is crucial in deciding the constitutionality of a statutory presumption against a claim that the presumption lessens or shifts the State's burden, see, e.g., County Court of Ulster Cy. v. Allen, 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979), the question here is not the constitutionality of the inference of intent. It is clearly constitutional. State v. Bennett, 20 Wn. App. 783, 582 P.2d 569 (1978). The critical issue before us is whether the court should have explained the operation of the inference of intent, which is a permissive presumption, to the jury so that the jury would be certain to apply the inference in a constitutional manner. The prophylactic instructions mandated by Roberts and Savage would have explained the inference and should have been submitted to the jury, especially in light of the jury's question to the court.
The predecessor of the statutory inference of intent was a mandatory rebut-table presumption, providing that once unlawful entry was established a defendant "shall be deemed" to have entered with intent to commit a crime unless the entry is explained by testimony satisfactory to the jury. Code of 1881, § 828; see State v. Chelly, 32 Wn. App. 916, 651 P.2d 759 (1982) (Ringold, J., dissenting).