dissenting.
I cannot agree with the majority conclusion that the conviction for burglary must be reversed in this case. I understand the majority opinion to hold Bush did not commit larceny from his friend’s apartment and, consequently, it is not possible to maintain the conviction based upon an entry with intent to commit larceny. In my view, this is not an accurate reflection of the law in Wyoming, and it appears to do violence to some of our prior eases. The only question in this regard is whether there was sufficient evidence to support the verdict of the jury. Instead, the majority opinion decides the facts, contrary to the decision apparently reached by the jury, by adopting the evidence favorable to Bush and drawing inferences in his favor rather than following a considered analysis of the evidence and the inferences to be drawn therefrom favorable to the State.
The majority opinion glosses over the evidence surrounding the burglary committed by Bush and casts it in the best light for him. A careful reading of the record discloses more than sufficient evidence to sustain the jury verdict. At the very least, since the crime was clearly established based upon one of the alternative theories of intent, the State should be afforded an opportunity to retry Bush for burglary on an amended information.
The first case that needs to be considered is Mirich v. State, 593 P.2d 590, 593 (Wyo.1979). We said:
There is other evidence of intent. Defendant had been in the building and knew its contents. Knowledge of what a structure contains, coupled with an attempt to enter it, supports a rational inference of intent to steal whatever is of value within the building. Hebb v. State, 1970, 10 Md. App. 145, 268 A.2d 578 (cert den.). The fact that nothing was taken from the building does not destroy the inference of intent to steal at the time of entry. State v. Witte, 1968, 280 Minn. 116, 158 N.W.2d 266. (Emphasis added.)
Next we should take into account Mainville v. State, 607 P.2d 339 (Wyo.1980). There, in considering an argument that the conviction of the accused for burglary could not be sustained because he had been acquitted of the attempted sexual assault which was the felony relied upon, we held that success in committing the felony was not material. The question was the intent with which the entry was made, and the circumstantial evidence sustained an inference of the requisite intent even though there was an acquittal of the attempted sexual assault.
In Sears v. State, 632 P.2d 946, 950 (Wyo.1981), this court revisited Mainville, and then we said:
*969The question here for the jury was not whether appellant committed the crime of third degree sexual assault but was whether he intended to commit such crime when he entered the dwelling without consent of the person in lawful possession of it. To be convicted, he need not even attempt to commit the third degree sexual assault. He need only to have intended to do so. Mainville v. State, Wyo., 607 P.2d 339 (1980). If the jury believed beyond a reasonable doubt from the evidence here placed before them that appellant intended to commit the crime of third degree sexual assault when he entered the apartment or victim’s room without permission, a verdict of guilty could be returned without consideration as to whether or not he actually committed the crime of third degree sexual assault or attempted to do so.
When the facts of this case are considered in light of these cases, it is apparent there was more than sufficient evidence to permit the jury to infer Bush entered the apartment with intent to commit larceny. He had been there before and knew of its contents. Under Minch, his entry with that knowledge would support the inference of entry with the intent to commit larceny. Both Mainville and Sears teach that whether Bush committed larceny is not material with respect to the inference of intent. In addition to the permissible inference to be drawn from Mi-rich, the record is clear, and the majority opinion concedes, that Bush told his brother and Ring they could take food from the apartment.
I submit the majority is clearly in error in its effort to distinguish this ease from Mirich and in holding that:
The same conclusion cannot be reached in this case. Mirich did not establish a per se rule that requires an automatic inference of intent to steal any time the prosecution establishes an unauthorized entry by a person with knowledge of the contents of the building. These two factors, knowledge of the contents of a building and an attempt to enter the building, only suppoH the inference that the defendant entered with the intent to steal; they do not mandate the conclusion that the defendant entered with the intent to steal. These two facts must be balanced against all the other circumstances that bear on the defendant’s state of mind at the time of entry.
This case presents an atypical factual scenario. Bush’s brother, Glendol, asked for a place to rest and clean his wounds. Glendol did not ask Bush to steal food for him. These facts indicate that Bush broke into Schantz’s apartment with the intent to provide his brother with a place to rest and a place to clean his wounds, not with the intent to steal. Glendol, of course, stole food and whiskey from Schantz’s apartment and Bush did nothing to prevent that theft. By allowing Glendol to take food from Schantz’s apartment, Bush may have conspired to commit larceny or may have aided and abetted a larceny, but no effort was made to prove those crimes. The inference that an escaped convict will likely steal food or other goods cannot be used to establish, beyond a reasonable doubt, that the person who illegally entered the building with the convict entered with the intent to commit larceny himself. The office of the statute which makes burglary a crime was intended to reach behavior with a higher degree of criminal intent than that which was proven or which can be inferred from all the surrounding circumstances. Thus, we conclude that the evidence presented, even when viewed in the light most favorable to the State, is insufficient to establish that Bush entered Sehantz’s apartment with the specific intent to commit a larceny. Because the State failed to present sufficient evidence to prove, beyond a reasonable doubt, that Bush committed both a larceny and a felony, his burglary conviction must be reversed. Cloman, 574 P.2d at 412.
Op. at 967-968 (emphasis added).
The fallacy in the majority opinion can be demonstrated by nothing more than a comparison of internal inconsistencies:
The fact that Bush took nothing from the apartment will not, standing alone, destroy the inference of intent to steal at the time of entry.
Op. at 966.
Because the State failed to present sufficient evidence to prove, beyond a reasonable doubt, that Bush committed both a *970larceny and a felony, Ms burglary conviction must be reversed.
Op. at 967-968.
The intent to steal can be established by a wide variety of direct and circumstantial evidence. In Miñch, we noted that “Knowledge of what a structure contains, coupled with an attempt to enter it, supports a rational inference of intent to steal whatever is of value in the building.” Minch, 593 P.2d at 593.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
These two factors, knowledge of the contents of a building and an attempt to enter the building, only support the inference that the defendant entered with the intent to steal * ⅜ *.
Op. at 967 (emphasis in slip opinion).
In reviewing the sufficiency of the evidence in a criminal case, we must determine whether a rational jury could have found, beyond a reasonable doubt, that the prosecution proved the essential elements of the crime. Porth v. State, 868 P.2d. 236, 243 (Wyo.1994). The evidence will be viewed in the light most favorable to the state. Id.
Op. at 966.
It is impossible for me to understand how the majority, having recognized the correct rules of law, then stands them on their heads. When the majority says, “[tjhese two facts must be balanced against all the other circumstances that bear on the defendant’s state of mind at the time of entry * * * ” (op. at 967), it clearly invades the province of the jury and embarks, in the following paragraph, upon developing its own factual conclusion based upon consideration of the evidence in the light most favorable to Bush. The result is deplorable jurisprudence. The only valid distinction between this case and Minch is that Mirich failed to effect an entry while Bush was successful.
I dissent because I am satisfied that the majority fails to follow the historical rule, established by precedent, that the completion of the underlying crime, whether larceny or some other felony, is not a necessary element of the crime of burglary. I find equally regrettable the predilection of tMs court to invade the province of the jury and retry the case in order to establish a favorable set of facts to justify the resolution. This tech-Mque is truly described as reasomng from a conclusion. Such an approach simply begs the question of the intent at the time of entry, and erroneously makes that entry depend upon the actual commission of the larceny. The conclusion is clearly contrary to Wyoming precedent. If those cases are to be overruled, the court should so state. Otherwise, tMs decision leaves the crime of burglary in an awkward state of confusion.
The majority opinion encompasses an able closing argument for Bush. It is not our province to advocate for criminals, however. On the basis of the record here and our prior cases, I would affirm the conviction on the charge of burglary.
Apparently, the majority intends to deny the State the opportunity to represent the burglary charge, relying only upon the entry with intent to commit the felony of accessory after the fact of escape. At the very least, the State should be afforded the opportumty to obtain a conviction upon remand.