(concurring) — I concur in the majority’s holding that Appellant’s conviction should be affirmed. I agree with the majority’s reliance on State v. Brunson, 128 Wn.2d 98, 905 P.2d 346 (1995) in which we recently held that it was not error for the trial court to give an instruction identical to the first portion of the challenged instruction in this case because the instruction creates a constitutionally valid permissive inference. I also agree with the majority that the instruction did not amount to a comment by the judge on the evidence. I write separately, however, because I disagree with the majority’s conclusion that the "unless” clause of the instruction impermissibly shifted the burden of persuasion to Deal. I do not believe that it was error to give this portion of the instruction in this case and would affirm for this reason.
*705As the majority notes, this court recently reviewed a jury instruction identical to the challenged instruction in this case, except that it did not contain the "unless” clause. Brunson, 128 Wn.2d at 105.6 In Brunson, we held that the inference of intent instruction created a permissive inference. Id. at 106. This court reasoned that
[T]he language of the instruction is clearly discretionary. The instruction tells the jury it "may” infer criminal intent and "[t]his inference is not binding on you and it is for you to determine what weight, if any, such inference is to be given.” WPIC 60.05. Nothing in the instruction suggests the jury must infer criminal intent if it finds unlawful entry. The jury is free to accept or reject the inference.
Id. The question before the court in this case is whether the addition to the instruction of the "unless” clause transforms it such that it creates an unconstitutional mandatory inference.
In State v. Johnson, 100 Wn.2d 607, 674 P.2d 145 (1983), this court reviewed an instruction substantively identical to the challenged instruction in this case.7 The Johnson court expressed concern that the "unless” clause "might well lead a reasonable juror to interpret the instruction as creating a mandatory production-shifting presumption.” 100 Wn.2d at 619. The Johnson court defined a "production-shifting presumption” as one that requires the trier of fact to draw a certain inference unless the de*706fendant produces some evidence to the contrary. Id. at 615. The court then held that, when operative, production-shifting presumptions are impermissible because when the defendant presents no evidence, the jury is required to find the existence of an element of the crime, effectively relieving the State of its burden of persuasion on that element. Id. at 617.
The critical difference between Johnson and this case is that the defendant did not testify in Johnson. The Johnson court recognized that "[tjhese constitutional infirmities disappear, however, when the defendant in his own case produces sufficient evidence from which a reasonable juror could find he has met his burden.” Id. at 617-18. That is so because in such a case the instruction becomes, in effect, a permissive inference—one that "may be inferred.” Id. at 618. I agree with the Johnson court that the instruction cannot trigger the ills feared by the court when the defendant has already met his burden of production on the issue of intent.8 The issue of whether the jury might feel required to make the inference if the defendant were to produce no evidence simply does.not exist when the defendant has in fact produced such evidence.
The majority in this case, with virtually no analysis or justification, not only repudiates the express determination by the Johnson court that the instruction is proper when the defendant has testified, but abandons the court’s characterization of the instruction as a "mandatory production-shifting presumption” in situations when the defendant has not testified. 100 Wn.2d at 619 (emphasis *707added). Instead, the majority concludes that it is error to give this instruction under any circumstance because a reasonable juror could always understand the instruction to create a persuasion-shifting presumption. I disagree.
I would adhere to our determination in Johnson that the instruction could, at most, be interpreted as production-shifting. When the defendant offers evidence sufficient to meet any perceived burden of production, as Deal did, then the instruction creates a constitutionally valid permissive inference. I would thus hold that here Deal’s right to due process was not violated by the challenged instruction.
Durham, C.J., concurs with Pekelis, J. Pro Tern.
Justice Rosselle Pekelis is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a) (amend. 38).
The challenged instruction in Brunson was as follows:
A person who enters or remains unlawfully in a building may he inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
128 Wn.2d at 101.
The challenged instruction in Johnson was as follows:
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.
100 Wn.2d at 611.
A11 nine members of the Johnson court agreed with this proposition. In fact, Justice Rosellini, writing for the dissent, discerned no problem with the "unless” clause, stating:
Contrary to the majority’s position, I believe the clause, "unless such entering or remaining shall be explained by evidence satisfactory to you”, simply circumscribes the jury’s ability to draw the inference when the entrance has been explained. The majority rejects this conclusion by asserting that if that were true, the clause would be entirely redundant. That may be, but no court has yet ruled that redundancy is unconstitutional.
100 Wn.2d at 631 (Rosellini, J., dissenting).