¶1concurs in result only because the evidence was sufficient for the jury to conclude beyond a reasonable doubt only that Appellee unlawfully entered the bank with the intent to commit a crime.
¶2Dissenting.
¶3Respectfully, I dissent. KRS 511.040 provides as follows: “A person is guilty of burglary in the third degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building.” Thus, the statute provides two elements to the crime: 1) having the intent to commit a crime, and 2) entering or remaining unlawfully. This is not an either/or situation; rather, the Commonwealth must prove both elements.
¶4Presumably, the crime that Appellee intended to commit was theft by unlawful taking of property over $300. Ironically, the jury acquitted Appellee of the theft charge. More difficult for the majority to deal with is the issue of whether Appellee entered or remained unlawfully in the credit union building. As the Court of Appeals noted, the testimony of the Commonwealth’s own witnesses established that there was no question that Appellee had permission to be in the credit union facilities on the weekend in question to clean the building. Further, the president of the credit union confirmed that permission to be in the building had not been revoked or withdrawn.
¶5Yet, the majority opines that “[i]t is doubtful that Appellee, despite having a key and the security code, was entitled to be on the premises. His license to be there was sufficiently circumscribed to en*577title the jury to believe that his third visit there on the weekend was without any license.” Op. at 576. Humbly, I would submit that there is no authority for such a position. Nor are any of the cases cited in the majority opinion for the theory of implied revocation of permission on all fours with the case at bar.
¶6The majority states that: “Metaphorically, Appellee states, ‘When the maid steals the silver, it is theft, not burglary.’ ” Op. at 574. Appellee was not referring to a metaphor, but the Official Commentary to KRS 511.020 which contains the following language:
With the requirement that an intrusion be unlawful, burglary is not committed by servants and invited guests who enter buildings under privilege even though they have intention to commit crime while there.
¶7The crux of this case is not whether Appellee had the intent to commit a crime on the premises. The key is whether he entered or remained in the building unlawfully. As we noted in Robey v. Commonwealth, Ky., 943 S.W.2d 616, 620 (1997):
[E]ven if the defendant did enter the apartment with the intent to commit a crime, the burglary statute further requires that the defendant either knowingly entered or unlawfully remained in the apartment, and that he then committed an independent crime satisfying the elements of the burglary offense, after his permission to be on the property had been withdrawn. Since no evidence was cited to show that the defendant knew his permission to be in the apartment had been withdrawn at the time he destroyed the property, he was entitled to a directed verdict.
¶8Former Chief Justice Stephens stated in Hedges v. Commonwealth, Ky., 937 S.W.2d 703, 707 (1996):
What this opinion does hold is that misconduct or criminal conduct does not become burglary solely by reason of commission of the act on the property of another. To hold otherwise would be to distort the crime of burglary into meaninglessness.
¶9Today, Chief Justice Stephens’ prediction comes true.
¶10STUMBO, J., joins this dissenting opinion.