dissenting.
In this case, appellant Henderson was charged with knowingly breaking and entering a dwelling with the intent to steal. When the court instructed the jury in the last sentence of its state-of-mind instruction that "[when an unlawful act, however, is proved to be knowingly done, no further proof is needed on the part of the state in the absence of justifying or excusing facts," it impermissibly shifted the burden of proof to the defense on the issue of whether there was an intent to steal. This was fundamental error and, in light of the minimal proof of intent to steal, not harmless beyond a reasonable doubt. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 LEd.2d 39 (1979). The instruction impacted differently here than it did in Jacks v. State (1979), 271 Ind. 611, 394 N.E.2d 166, where the charge was murder and there was a single criminal state of mind at issue. Here there were two such states of mind, namely one involving a knowing breaking and entering and one involving an intent to steal. The instruetion told the jury that, in the absence of some proof of justification or exeuse by the defense, once it had inferred that an unlawful act of breaking and entering had been knowingly accomplished, it need not go on and determine whether the breaking and entering had been accomplished contemporaneously with an intent to steal. This was error.
DICKSON, J., concurs.