¶1(dissenting) — I would affirm the Court of Appeals result as well as analyses in all four cases. I therefore dissent.
¶2The majority initially examines the constitutional validity of a jury instruction based on RCW 9A.52.040. That instruction states:
*631Any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to you to have been made without criminal intent.
¶3Majority opinion, at 611. After an extensive discussion of the various types of presumptions, the majority concludes that this instruction creates an unconstitutional "mandatory production-shifting presumption." Majority opinion, at 619. I disagree. I find the State's argument, as to the function this instruction serves, more persuasive. The State contends, and I agree, that the instruction simply creates a permissive inference. As admitted by the majority, the first part of the instruction is obviously permissive. It states simply that ''[a]ny person who enters ... a building may be inferred to have acted with intent". Contrary to the majority's position, I believe the clause, "unless such entering or remaining shall be explained by evidence satisfactory to you", simply circumscribes the jury's ability to draw the inference when the entrance has been explained. The majority rejects this conclusion by asserting that if that were true, the clause would be entirely redundant. That may be, but no court has yet ruled that redundancy is unconstitutional.
¶4Even if I were to agree that the instruction here created a mandatory rather than permissive presumption, I do not agree with the majority's conclusion that it is unconstitutional.
¶5As noted in State v. Savage, 94 Wn.2d 569, 618 P.2d 82 (1980), there are several forms of mandatory presumptions. The presumptions vary with the type or degree of burden they impose upon the defendant in attempting to rebut the presumption. First, a presumption may require that the defendant rebut it with a quantum of evidence that is greater than "some" evidence. These presumptions are constitutionally impermissible because they shift the burden of persuasion to the defendant. Savage, at 574; Sand-*632strom v. Montana, 442 U.S. 510, 524, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). The second type of mandatory presumption is one which requires the defendant to come forward with "some" evidence to rebut the presumed connection. Savage, at 574. The final type of mandatory presumption imposes an extremely low burden which may be satisfied by "any" evidence. Savage, at 574.
¶6The Court has strongly suggested that this latter form of presumption is constitutional. For instance, in County Court of Ulster Cy. v. Allen, 442 U.S. 140, 158, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979), the Court observed that presumptions that impose extremely low burdens may have an impact no greater than that of a permissive inference. I believe the instruction here falls into this category.
¶7The instruction given here simply stated that the jury may infer intent "unless such entering or remaining shall be explained by evidence satisfactory to you". (Italics mine.) Majority opinion, at 618. The instruction does not quantify or restrict the evidence that the jury could consider. Consequently, the jury is free to reject the inference on any evidence produced by the defendant which it believed. The instruction combines a permissive first clause with a small burden of proof in the second phrase. These factors convince me that the instruction is properly analyzed as the type of mandatory presumption whose burden is so light that it is merely permissive. Such instructions are constitutional.
¶8Finally, the majority finds that it is error not to specify the crime which the defendant intended in the information or instructions. The majority in State v. Chelly, 32 Wn. App. 916, 919-20, 651 P.2d 759 (1982) succinctly stated why such a rule would be unwise. Judge Durham, writing for the majority, observed:
Knowledge' of criminal intent usually resides exclusively in the mind of the defendant. He may unlawfully enter a building with the intent to commit a certain crime, and ultimately commit a different crime, or no crime at all. He is nonetheless guilty of burglary. In either case, the *633State would be hard pressed to prove entry with intent to commit a crime if it were required to specify exactly which of several crimes available to the defendant he intended to commit. Such a requirement would seriously weaken the enforcement of burglary laws. Of course, in cases where the specific crime intended is made obvious by surrounding circumstances, the better practice would be to identify that crime. Nonetheless, the trial court did not err in failing to instruct on the elements of theft.
¶9Accord, Commonwealth v. Thompson, 274 Pa. Super. 44, 417 A.2d 1243 (1979) (prosecutor not required to specify underlying crime). This is the better rule and one which should be retained in this state.
¶10I therefore dissent.
¶11Dore and Dimmick, JJ., concur with Rosellini, J.