concurring and dissenting.
Appellant stands convicted of three separate offenses, namely, the murder of Lori Bullock, the burglary of Bullock’s apartment, and an attempt to commit deviate conduct upon Bullock’s person. Appellant stands sentenced to the death penalty under I.C. 35-50-2-9(b)(l) based upon the intentional killing of Bullock while committing the said burglary and the said attempted deviate conduct. Appellant claims on appeal that the evidence tending to show that he broke and entered the apartment, and tending to show that he attempted to penetrate the sex organ of the victim in stabbing her is insufficient to support the jury verdicts of guilty of burglary and attempted deviate conduct, the jury recommendation of death, and the judge’s sentence of death. This claim is sound.
A conviction for a crime or the imposition of a death sentence based upon the contemporaneous commission of one of the separate crimes enumerated in I.C. 35-50-2-9(b)(l) cannot stand on appeal if the evidence in support of it is insufficient. Either must be set aside if the evidence, without weighing it or determining questions of credibility, lacks probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Howard v. State (1982), Ind., 433 N.E.2d 753.
To prove burglary, the State must show a breaking and entering occurred. I.C. 35-43-1-4. Proof of a breaking and entering requires evidence of the application of some force or effort to overcome or remove a barrier. While there need not be an actual rupturing or breaking of the entry way, there must be a showing that force was used, however slight, to gain entry. Willard v. State (1980), 272 Ind. 589, 400 N.E.2d 151. Here there was no such evidence. The evidence showed that appellant knocked on the apartment door and that he was in the apartment. There was also evidence that the apartment door would open on occasion through the application of slight force. However, this does not constitute evidence that appellant applied any force to gain unauthorized entrance. Howard, 433 N.E.2d 753.
While it was only necessary to prove attempted criminal deviate conduct and not the completed crime of criminal deviate conduct, the evidence of an attempt to penetrate the sex organ of the victim with a knife was also insufficient. There were some twenty-two stab wounds to the body, many of which were sufficient alone to cause death. The heart was pierced. The throat was cut several times. There were multiple additional cutting wounds to the arms and legs. The pathologist testified that he was able to discern from his examination of the body that all wounds were inflicted in a flurry which lasted a matter of minutes. There was a large gaping wound in the pubic area above the pubic bone through which the knife entered several times, and was deflected downward by the pubic bone so as to cut the external labia. The knife did not enter the vagina or the area beneath the covering of the labia. This evidence shows no more than an undifferentiated criminal state of mind with contemporaneous homicidal conduct directed at the person as a whole. It does not show an attempt to penetrate the sex organ of the victim with the knife, as is contemplated in the criminal deviate conduct statutes. I.C. 35-42-4-21; I.C. 35-41-1-9.
The conviction for murder should be affirmed, however the convictions for burglary and attempted deviate sexual conduct should be reversed because of the lack of sufficient proof. On like basis, the sen*913tence of death should be vacated since it is based as well upon insufficient proof of the contemporaneous burglary and attempted deviate conduct, both essential elements of the aggravating circumstance warranting the death penalty, and the cause should be remanded for a sentence of years upon the murder conviction.
DICKSON, J., concurs.