dissenting and concurring.
The crime of burglary is defined by statute in the following manner. "A person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary, a Class C felony." I.C. 85-48-2-1. Two of the forms of the related crime of criminal trespass are defined by statute in the following manner:
(a) A person who:
(1) not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person or his agent;
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(4) knowingly or intentionally interferes with the possession or use of the property of another person without his consent;
commits criminal trespass, a Class A misdemeanor.
(b) A person has been denied entry under subdivision (a)(1) of this section when he has been denied entry by means of:
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(2) posting or exhibiting a notice at the main entrance in a manner that is either presented by law or likely to come to the attention of the public.
IC. 35-48-2-2. Having read these two statutes, and their immediate predecessors, I am unable to agree with the First District of our Court of Appeals in Joy v. State (1984), Ind.App., 460 N.E.2d 551, and the majority in this case, that "hopping over" or "squeezing through", or even cutting through a fence which surrounds a junk yard, with the intent to steal, constitutes a breaking and entering of a structure as contemplated in the burglary statute. See id. at 559 n. 8.
The word "structure" suggests an item which consists of different parts or members which are put together to form a homogenous whole. Webster's Third New International Dictionary (1976). A fence, while made up of posts and stringers and often woven wire of some sort, exists for the most part in a single plane, and lacks that complexity often associated with common structures such as bridges and buildings. It is also accurate to say that areas rendered secure by fences alone are considered low-security areas, while areas within houses, barns, sheds, and garages are considered high-security areas. Pos-sessory interests and expectations are at a lower ebb with respect to areas secured by most fences, and one would not reasonably expect that an intrusion into fenced areas would be treated with the same severity as intrusions into areas more strongly secured, such as sheds, warehouses and homes.
Behind the present statutory language stand the prior burglary statutes. Under those statutes, while a fence was considered a valuable "structure" in need of special protection against theft, by express terms, the entering of a lot or yard enclosed by a fence with the intent to commit a felony was considered only third degree burglary, a crime punishable by no more than one year at the state farm:
whoever enters or attempts to enter any inclosed or uninclosed lot, parcel, or tract of land, with the intent to commit a felony thereon, or with the intent ... to sever or remove any building, gate, fence, railing, or other structure, shall be guilty of burglary in the third degree....
1.C. 85-18-4-4(c) (Burns Supp.1975).
It seems highly likely that third degree burglary, which was often not a lesser and *33included offense of first and second degree burglary and thus, in an important respect, not often a species of burglary at all, was moved at the time of codification to and subsumed in the criminal trespass statute.
With the duty to give due deference to the legislative prerogative to define crimes and punishments on the one hand, and the duty to narrowly construe ambiguity in criminal statutes on the other hand, the correct conclusion to be reached here is that a fenced yard is not a "structure" within the meaning of that term in the burglary statute. I would reverse the conviction for burglary and affirm the convietion for resisting law enforcement.