concurring and dissenting.
The aggravating circumstance relied upon by the State to elevate this homicide to the capital class is set forth in L.C. 35-50-2-9(b)(1)(B):
The defendant committed the murder by intentionally killing * * * while committing ... Burglary (ICG 85-48-2-1).
Burglary is defined by IC. 85-48-2-1 as:
A person who breaks and enters the building or structure of another ... with intent to commit a felony in it, commits burglary, a class C felony.
The contention is made that there was insufficient evidence of the element of "breaking." In analyzing this essential element, the following was set forth in Cockerham v. State (1965), 246 Ind. 303, 204 N.E.2d 654.
In Barrick v. State (1954), 233 Ind. 333, 339, 119 N.E.2d 550, 553, we stated: "The term 'breaking' as used in our statute denouncing the crime of burglary does not imply the actual fracturing of or injury to a material part of a building, such as a door or window. It includes the putting aside of any material part of the building intended as a security against invasion, such as removing a window screen, * * * or opening a closed door."
Walking through an open door does not constitute a "breaking" as such element is known in the crime of burglary. However, the use of the slightest force in pushing aside a door in order to enter does constitute a breaking through the doorway." Link v. State (1953), 232 Ind. 466, 113 N.E.2d 43.
A breaking is proved by showing that even slight force was used to gain unauthorized entry, as where a door left partially ajar is opened further in entering. Howard v. State (1982), Ind., 433 N.E.2d 753.
The proof in this instance is that the victim answered a knock to her door after dark on a summer evening. There was a regular inner door and an outer screen or storm door. The victim exited to the out side where she was first attacked. Appellant and his accomplice then entered through the doorway. The majority apparently finds sufficient cireumstantial evidence to permit an inference to be drawn by a rational trier of fact to a certainty beyond a reasonable doubt that in so entering appellant or his accomplice physically *131opened one of these doors rather than walking through an already open doorway. I find no such sufficient evidence in the testimony and photos of the doorway.
The State argues that there was sufficient evidence of a "breaking" in the proof that the door was closed by appellant in the process of entering. Clearly, when one closes a door in entering, the moving of the door to its closed position does not facilitate or gain the entry, and therefore cannot constitute a "breaking." See Willard v. State (1980), 272 Ind. 589, 400 N.E.2d 151.
In light of the insufficient proof of a "breaking" of the victim's dwelling, there is insufficient evidence of burglary and of the aggravating circumstance upon which this sentence of death is based. In such instances where the murder conviction is to be affirmed, the proper disposition of the appeal is to remand with instructions to enter the maximum prison sentence for murder provided for by law. Thacker v. State (1990), Ind., 556 N.E.2d 1315. That is the proper result in this case. In all other respects, I concur in the majority opinion.
SHEPARD, C.J., concurs.