Appellant-defendant Darrell K. Sumner (Sumner) appeals from his conviction of attempted burglary,1 a class C felony, claiming there was insufficient evidence to support the verdict.
We reverse.
On September 18, 1987, Indianapolis Police Officer Glen Ruegsegger (Ruegsegger) was on patrol at approximately 8:15 a.m. and witnessed two black males on the sidewalk in front of Reeve's Variety Store on Martin Luther King Street in Indianapolis. Ruegsegger parked his car in the alley and observed one of the males lift Sumner, the other male, to a window of a door. Sumner attempted unsuccessfully to unlock the door. As another marked police car approached the area, Sumner and the other male ran to the end of the building and waited for the vehicle to pass. They then returned to the building and again attempted to unlock the door. Once more, some vehicles approached, and Summer and his accomplice waited at the end of the building until the cars passed.
The two again returned to the store and began pulling on the security bars which covered the front window of the store. They eventually were successful in pulling the bars off the wall. Sumner's accomplice then kicked the window, breaking it. As Sumner and the other male began pulling pieces of glass from the window, the entire window fell in, causing a loud crash. They both ran to the corner of the building. Ruegsegger began chasing them on foot, and eventually found Sumner lying on a porch with a laceration on his right arm.
Following a trial by court, Sumner was convicted and sentenced to a five-year term of imprisonment.
Sumner presents the following issue for review:
Was there sufficient evidence to sustain the conviction?
In view of recent Indiana Supreme Court decisions we conclude that the evidence was insufficient to demonstrate the intent required for attempted burglary.
To establish the crime of attempt, the State must show both that the defendant had the requisite culpability to commit the crime and that his conduct constituted a substantial step toward commission of that crime. Gebhart v. State (1988) Ind., 531 N.E.2d 211. To conviet for attempted burglary, the State must demonstrate that at the time a defendant breaks and enters or attempts to break and enter a structure, he has the intent to commit a specific felony inside the structure. Justice v. State (1988) Ind., 530 N.E.2d 295 Gilliam v. State (1987) Ind., 508 N.E.2d 1270; Timmons v. State (1986) Ind., 500 N.E.2d 1212. Although evidence of breaking and entering alone cannot serve as a basis from which to infer the intent to commit the underlying felony which has been charged, (in this case, theft), our Supreme Court has long observed that intent may be inferred from circumstantial evidence of the nature of the felony. Creasy v. State (1988) Ind., 518 N.E.2d 785. While the evidence need not be insurmountable, it must provide a solid basis to support a reasonable inference that the defendant intended to commit the underlying felony charged. @illiom, supra.
The majority in Justice, observed that "[elvidence of breaking and entering, and *1255evidence of flight are not probative unless tied to some other evidence which is strongly corroborative of the actor's intent." Id. at 297 (emphasis supplied). In Justice, the defendant's burglary conviction was reversed when the State asserted that an intent to commit theft had been established in light of the uncontradicted facts that the defendant had entered the victim's home illegally by removing a sereen from a dining room window, fled when the victim recognized him, and had covered his hands with socks at the time of the break-in which occurred during the month of May. The Justice court concluded that the evidence failed to prove beyond a reasonable doubt that the defendant intended to commit theft.
In Gebhart, supra, the defendant's conviction for attempted burglary was reversed on sufficiency grounds, the evidence being that after the victim refused to answer the defendant's knock on her front door, he pried open the back door with a tire iron. The victim called police and Geb-hart fled when he saw the victim looking at him. The evidence failed to support a reasonable inference that the defendant intended to steal because he fled from the residence "before manifesting the nature of his unlawful purpose." 531 N.E.2d at 212, (emphasis supplied).
The majority in Gebhart concluded that while the evidence might have supported the intent to steal by a preponderance of the evidence, or
"'that the appellant intended some undetermined sort of wrong doing, mischief, misdeed, or immoral or illegal act, ... [the evidence was not sufficient to demonstrate] proof beyond a reasonable doubt of a specific criminal intent which coincide[d] in time with the acts constituting the breaking and entering...." 531 N.E.2d at 212.
Previously, our Supreme Court in Lisenko v. State (1976) 265 Ind. 488, 355 N.E.2d 841, cited with approval in Slaton v. State (1987) Ind., 510 N.E.2d 1343, said that the intent to commit theft may be inferred from the time, force, and manner in which entry is made. The cleavage between Lisenko and Justice and Gebhart is too strong to ignore. Lisenko and the numerous cases following it have been impliedly overruled. Hakn v. State (1989) 2d Dist.Ind.App., 533 N.E.2d 618.
We therefore reverse Sumner's conviction for attempted burglary and order that he be discharged.
RATLIFF, C.J., concurs. BUCHANAN, J., dissents with opinion.. Indiana Code 35-43-2-1 (Burns Code Ed. Repl.1985) and I.C. 35-41-5-1 (Burns Code Ed. Repl.1985).