Tavitas, J.
Anthony Wilburn appeals his conviction for burglary, a Level 2 felony. Wilburn contends that the trial court abused its discretion by admitting the opinion testimony of a police officer as a skilled witness and that the evidence is insufficient to sustain his convictions. We conclude that the trial court properly admitted the police officer’s opinion testimony as a skilled witness. We also conclude that the evidence is sufficient to identify Wilburn as the perpetrator of the robbery but that the evidence is insufficient to sustain Wilburn’s conviction for burglary. Accordingly, we affirm in part, reverse Wilburn’s burglary conviction, and remand for the trial court to enter judgment of conviction for robbery, a Level 3 felony, and resentence Wilburn in accordance with this opinion.
Wilburn raises two issues, which we restate as: I. Whether the trial court abused its discretion by admitting the opinion testimony of a police officer as a skilled witness. II. Whether the evidence is sufficient to sustain his convictions.
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Wilburn first challenges his conviction for burglary. The offense of burglary is governed by Indiana Code Section 35-43-2-1, which provides: “A person who breaks and enters the building or structure of another person, with intent to commit a felony or theft in it, commits burglary[.]” The offense is a Level 2 felony if it is “committed while armed with a deadly weapon.” Ind. Code § 35- 43-2-1(3)(A). According to Wilburn, there was no breaking here because he entered a retail establishment during business hours through a public, unlocked door.
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Indiana courts have not had occasion to determine whether entering a business establishment during its hours of operation through an unlocked public entrance can constitute a “breaking” in the context of burglary. It is well-established, however, that “[w]alking through an open door does not constitute a ‘breaking’ as such element is known in the crime of burglary[.]” Hooker v. State, 120 N.E.3d 639, 646 (Ind. Ct. App. 2019) (citing Cockerham v. State, 246 Ind. 303, 307, 204 N.E.2d 654, 657 (1965)), trans. denied. Further, our Supreme Court has held: “In jurisdictions, such as Indiana, which retain the common law definition of burglary by requiring a breaking, there can be no breaking and therefore no burglary where the owner or other authorized person consents to entry, since a consensual entry is not an unlawful or illegal entry.” Smith v. State, 477 N.E.2d 857, 862 (Ind. 1985).
It is clear that a business owner invites members of the public into the establishment during operating hours and, thus, consents to the entry into the establishment through public, unlocked doors. The State, however, argues that “there is no consent to enter a business when a person’s actions go beyond these legitimate commercial purposes.” Appellee’s Br. p. 18; see also Judy E. Zelin, Maintainability of Burglary Charge, Where Entry Into Building is Made with Consent, 58 A.L.R.4th 335 (“[S]ome courts have held or recognized that authority to enter a public place extends only to those who enter with a purpose consistent with the reason the building is open, and that therefore an entry with criminal intent is not within the limited authority to enter granted to the public.”). Thus, under the State’s argument, whether a person has consent to enter is dependent upon the person’s intent. A burglary offense would be complete when a person entered a public business during business hours with the intent to commit a felony even if the person changed his or her mind and merely shopped in the store.
A plain reading of the statutory language refutes the State’s argument…The burglary statute requires that the defendant “breaks and enters the building or structure of another person, with intent to commit a felony or theft in it.” I.C. § 35-43-2-1. Accordingly, the statute requires both a breaking and entering and the intent to commit a felony or theft. Under the State’s argument, the breaking element would be ignored.
Here, Save-On Liquor was still open for business, and Wilburn entered through the unlocked front door. We conclude that the evidence is insufficient to sustain Wilburn’s conviction for burglary of a business open to the public during business hours because there is a lack of evidence as to breaking. See, e.g., State v. Ferguson, 229 S.W.3d 312, 316 (Tenn. Crim. App. 2007) (reversing burglary convictions where the court concluded that “it was apparent to a person who approached the laundromat during the hours it was open for business that the person had the owner’s consent to enter. The Defendant entered the facility during these hours, and thus the owners gave effective consent in fact for the entry.”); State v. Hall, 14 P.3d 404 (Kan. 2000) (affirming the court of appeals’ reversal of the defendant’s burglary convictions where he entered the stockroom of a public store and stole items). Accordingly, we reverse Wilburn’s conviction for burglary. We remand for the trial court to enter judgment of conviction on Wilburn’s robbery guilty verdict and resentence Wilburn on the robbery conviction.
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The trial court did not abuse its discretion when it admitted Sergeant Dolby’s testimony as skilled witness opinion testimony. Further, the evidence is sufficient to identify Wilburn as the perpetrator of the robbery, but the evidence is insufficient to sustain his conviction for burglary. Accordingly, we reverse Wilburn’s burglary conviction and remand for the trial court to enter judgment of conviction for robbery, a Level 3 felony, and resentence Wilburn in accordance with this opinion.
Affirmed in part, reversed in part, and remanded.
Mathias, J., and Weissmann, J., concur.