concurring in result.
I concur with the result of the majority but respectfully disagree with its reasoning as to the breaking and entering jury instruction. In my opinion, the breaking and entering jury instruction created an impermissible mandatory presumption, but I find that giving this instruction was harmless error.
As the majority points out, "[a] mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts." Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Here, the *1190jury was instructed that the opening of a locked or unlocked door is sufficient to establish the essential element of breaking. In other words, the trial court instructed the jury that if the State proves that Higgins opened a locked or unlocked door, then that predicate fact was sufficient to establish the breaking. In my opinion, this instruction meets the definition of a mandatory instruction.
The majority attempts to distinguish this instruction from the instruction we found impermissible in Waiker by pointing out that the Walker instruction contained the language "it is a fundamental principle of law." I am unconvinced that the absence of that language from the instruction in this case makes this instruction any less mandatory. The instruction here unequivocally told the jury that the opening of a door is sufficient to establish breaking. It is the word is that makes the instruction in this case mandatory. Had this jury instruction read that "the opening of a locked or unlocked door may be sufficient," no such mandatory conclusion would have followed.
Nevertheless, I view the giving of this instruction as harmless error. Generally, the manner in which the jury is instructed lies within the sound discretion of the trial court. Hall v. State, 769 N.E.2d 250, 253 (Ind.Ct.App.2002). A decision on the submission of jury instructions is only reversible by showing an abuse of that discretion. Id. at 253-54. A defendant is only entitled to a reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights. Id. at 254. Unlike in Walker, the subject of the mandatory instruction in this case was not in dispute. While in Walker the mandatory instruction dealt with the same contested issue the jury had to decide, namely, the intent of Walker; here, the mandatory instruction was not on an issue in dispute. It was never in dispute that Higgins broke into Freson's house. Rather, Higgins argued that when he entered Freson's house, he mistakenly believed he had her consent to do so. I note that the jury was properly instructed on Higgins' mistake of fact defense, and, therefore, the giving of the breaking instruction did not mislead the jury or substantially prejudice the rights of Higgins. See Swallows v. State, 674 N.E.2d 1317, 1318 (Ind.1996) (declaring no fundamental error where trial court refused jury instruction on specific intent for attempted murder charge because intent was not put at issue during trial); Sanders v. State, 764 N.E.2d 705, 711 (Ind.Ct.App.2002), trans. denied, cert. denied, - U.S. --, 123 S.Ct 300, 154 L.Ed.2d 201 (2002).
I am concerned that the breaking and entering instruction tells the jury that "the state need only introduce evidence from which the trier of fact could reasonably infer that the slightest force was used to gain unauthorized entry." Appellant's App. p. 53. As we have previously written, the use of the term unauthorized is confusing because it does not mean "authorization from the owner of the dwelling{;]" instead, it refers to "not authorized by the State, le. illegal." Griesinger v. State, 699 N.E.2d 279, 282 (Ind.Ct.App.1998) (quotation omitted), trams. demied. However, this instruction does not provide that the use of the slightest force equals an unauthorized entry. Instead, the instruction provides that the opening a door equals the slightest force necessary to satisfy the breaking element. Furthermore, any confusion which may have been caused to the jury by this instruction was cleared up by the court giving the instruction explaining that it was a defense that Higgins was under a mistaken belief, i.e., that he believed that he had consent to enter Fre-son's home. Therefore, while I believe the breaking instruction was an impermissible *1191mandatory instruction, the giving of it was harmless in that it did not prejudice the substantial rights of the defendant.