Barnes, J.
In its latest discussion on the topic of proving intent in the burglary context, the Indiana Supreme Court wrote:
Burglary is the breaking and entering of the building or structure of another person with the intent to commit a specific felony therein. Ind. Code § 35-43-2-1; Gilliam v. State, 508 N.E.2d 1270, 1270 (Ind. 1987); Yeagley v. State, 467 N.E.2d 730, 736 (Ind. 1984). ….
“Burglars rarely announce their intentions at the moment of entry,” Gilliam, 508 N.E.2d at 1271, and indeed many times there is no one around to hear them even if they were to do so. Hence, a burglar’s intent to commit a specific felony at the time of the breaking and entering “may be inferred from the circumstances.” Id.; see also Hampton v. State, 961 N.E.2d 480, 487 (Ind. 2012) (“[T]he mens rea element for a criminal offense is almost inevitably, absent a defendant’s confession or admission, a matter of circumstantial proof.”); Kondrup v. State, 250 Ind. 320, 323-24, 235 N.E.2d 703, 705 (1968) (“[T]he intent to commit a felony may be inferred from the circumstances which legitimately permit it.”). “Circumstantial evidence alone is sufficient to sustain a burglary conviction.” Kidd [v. State], 530 N.E.2d [287, 287 (Ind. 1988)]; accord Cash v. State, 557 N.E.2d 1023, 1025 (Ind. 1990) (“A conviction for burglary may be sustained by circumstantial evidence alone.”).
Evidence of intent “need not be insurmountable,” Gilliam, 508 N.E.2d at 1271, but there must be a “specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony[.]” Freshwater [v. State], 853 N.E.2d [941, 944 (Ind. 2006)]. The evidentiary inference pointing to the defendant’s intent must be separate from the inference of the defendant’s breaking and entering. Justice [v. State], 530 N.E.2d [295 , 297 (Ind. 1988)]; Kondrup, 250 Ind. at 323, 235 N.E.2d at 705. The inference of intent must not derive from or be supported by the inference of breaking and entering. In other words, the evidence must support each inference—felonious intent and breaking and entering—independently, and neither inference should rely on the other for support. This is not to say, however, that the same piece of evidence cannot support both inferences.
Requiring independent evidence of intent is necessary to maintain the distinction between burglary and other criminal offenses involving property invasion such as criminal trespass, Ind. Code § 35-43-2-2, or residential entry, Ind. Code § 35-43-2-1.5. Permitting the felonious intent element to be inferred from the inference of breaking and entering would render the intent element meaningless and read it out of the statute. See Faulkner v. State, 260 Ind. 82, 87, 292 N.E.2d 594, 596 (1973) (“If the Legislature had intended to punish a breaking and entry by itself, as we have here, they would not have added the second element of specific intent. A reading of the statute clearly indicates that both elements are included.”).
Baker v. State, 968 N.E.2d 227, 229-30 (Ind. 2012) (footnotes omitted).
We conclude that the State produced sufficient evidence to prove that Oster broke and entered Large Ink with the intent to commit theft within. First, Oster was caught with burglary tools, namely one Phillips-head screwdriver, one flat-head screwdriver, and a pair of pliers, tools that would be very helpful if one wished to gain access to cash registers, cash boxes, desks, drawers, etc. It is worth noting that there is evidence that Oster used a brick to break into Large Ink and no evidence whatsoever that Oster used his tools to do so. In other words, his possession of tools is evidence that supports an inference of intent to commit theft but does not derive from evidence of the breaking and entering. This fact neatly distinguishes this case from Freshwater, in which there was evidence that the screwdriver in Freshwater’s possession when he was apprehended had been used during the break-in. Freshwater, 853 N.E.2d at 942.
Second, the very nature of the structure into which Oster broke—a retail business—is also independent evidence of his intent to commit theft. Common sense dictates that when one breaks into a retail business after-hours, it is more likely done with the intent to commit theft than, say, if one breaks into an empty warehouse. Retail businesses are likely to contain cash and/or easily-fenced items, such as computers. Third, the record severely undercuts the notion that Oster might have been seeking shelter, another at least plausible reason one might break into a structure. Oster was a resident of the Lighthouse Mission in Terre Haute at the time of the break-in and so would have had no need for alternate shelter. Oster’s possession of burglary tools, the nature of the structure into which he broke, and the absence of any indication that he broke into Large Ink for a reason other than theft are independent evidentiary facts sufficient to sustain his burglary conviction.
BROWN, J., concurs.
RILEY, J., dissents with opinion:
Here, as in Freshwater and Justice, the State has failed to prove a specific fact that provides a solid basis to support a reasonable inference that Oster had the specific intent to commit a felony. The method by which Oster entered the building suggests nothing more than that he broke in. He could have done so for any number of reasons that do not include theft. There is no evidence that Oster touched anything or took anything with him during his brief time in Large Ink. Except for the broken window, nothing in the business was disturbed. The fact that Oster was apprehended with two screwdrivers and a pair of pliers does not change this result.
Although the evidence in this case might well support the conclusion that Oster “intended some undetermined sort of wrongdoing, mischief, misdeed, or immoral or illegal act[,] that is not the issue to be resolved.” Freshwater, 853 N.E.2d at 943 (quoting Gebhart v. State, 531 N.E.2d 211, 212 (Ind. 1988)). Where the State cannot establish intent to commit a particular underlying felony, criminal trespass is the appropriate charge. I would therefore reverse Oster’s burglary conviction.