concurring in result.
I contended in Guyton v. State, 771 N.E.2d 1141, 1149 (Ind.2002) (Boehm, J., concurring), that we should admit that we have abandoned the Richardson “actual evidence” test. I think this case supports that contention. The burglary instruction told the jury that' a burglary conviction required four things, the last of which was that the burglary was committed:
'with the intent to commit a felony theft in it, to-wit: exerted unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, to-wit: took one bottle of Jim Beam, 6½ 12 pack cases of Budweiser beer, 9 cartons of miscellaneous cigarettes, small bottles of alcohol and $92 in cash.
The majority says that the words following “to-wit” “merely describe the theft intended and did not compel the jury to find the completed theft as an element of burglary.” That may be our reading of the instruction, and perhaps it is a correct reading of that instruction. But a jury adhering to the instruction’s first line— “the State must have proved each of the following elements” — might easily conclude that the entire fourth “element,” which included every fact in the theft instruction, had to be proven to return a guilty verdict on the burglary charge. These facts included the specific amount of cash stolen ($92) and precisely nine cartons of cigarettes. If the jury understood this instruction as the majority reads it, it seems improbable that it would have convicted Vestal of burglary because an intent at the time of entry to steal $92 is highly unlikely. At the very least, there is a reasonable possibility that the jury reached the conclusion that it must find that this particular theft must have been accomplished, not that an intent to commit any old theft was sufficient. The point is we simply do not know the jury’s reasoning. For the reasons given in my concurrence in Guyton, I would not attempt to guess at the jury’s process and would return to the pre-Richardson methodology that I believe the Court in Guyton adopts.
This Court recently reiterated the formulation of constitutional and other double jeopardy doctrines proposed by Justice Sullivan’s concurrence in Richardson. Guyton, 771 N.E.2d at 1141-49. I agree and therefore concur in the result reached by the majority. I believe that an appellate court reviewing de novo the relevant information in this ease, including the evidence, the arguments of counsel, and the instructions, can readily conclude that there was sufficient evidence of facts supporting the burglary that were not the “very same facts” supporting the theft. The burglary was complete upon breaking with intent to take some property, and the theft was consummated when the specified items were taken. On that basis, I concur in the majority’s conclusion that there is no double jeopardy violation.