Dissenting Opinion
Buchanan, P.J.— I respectfully dissent from the majority opinion because there is evidence to support a reasonable inference of the specific intent of Clayton to commit the felony of theft in the service station.
As recently emphasized in Kash v. State,1 when the sufficiency of circumstantial evidence is questioned:
this Court must carefully examine the evidence most favorable to the State, not to determine whether every reasonable hypothesis of innocence is overcome, but to determine whether reasonable persons could form an inference with regard to each material element of the offense so as to ascertain defendant’s guilt beyond a reasonable doubt. *694McAfee v. State (1973), 259 Ind. 687, 291 N.E.2d 554; Traylor v. State (1975), 164 Ind. App. 50, 326 N.E.2d 614.2
Even more specifically, in Farno v. State,3 we recognized our mandate not to reweigh the evidence if there exist two reasonable inferences, one of guilt and one of innocence:
If the circumstantial evidence bearing upon [an element of the crime] could reasonably lead to either of two inferences, one of guilt and one of innocence, an appellate tribunal is not free to reweigh the evidence and determine which should have predominated in the mind of the trier of fact.4
The evidence5 in the record as to specific intent to commit theft could reasonably have lead the jury to an inference of Clayton’s innocence or reasonably have lead it to an inference of guilt.
Creating a reasonable inference of guilt is this circumstantial evidence:
(1) the overhead door to the garage bay had been opened (this was not evidence of the breaking in, as the point of entry was a broken rear window) ;6
(2) a gas price sign had been moved from the inside bay and leaned against an outside pump;
(3) Clayton was observed using the telephone for two minutes.
*695This evidence reasonably supports an inference that Clayton had opened the overhead doors to remove inside valuables, had begun such removal as evidenced by the sign taken outside, and was in the process of calling an accomplice.
On numerous occasions a reasonable inference of guilt has been held to be sufficient evidence to support a judgment of guilt.7
The majority rely on Easton v. State8 which is unlike this case because Clayton, opened a door and actually removed property (the sign) of the owner. The facts before us are closer to Kondrup v. State,9 which I consider adequate precedent, along with Cooper v. State,10 to affirm the judgment.
The jury had two reasonable inferences from the circumstantial evidence before it, one of guilt and one of innocence; they chose guilt. The majority of this court have reweighed the evidence and chosen innocence.
The conviction should be affirmed.
Note. — Reported at 354 N.E.2d 338.
. (1975), 166 Ind. App. 666, 337 N.E.2d 573.
. Id. at 574.
. - (1974), 159 Ind. App. 627, 308 N.E.2d 724.
. Id. at 725-26 (citations omitted).
. This is not a case in which there is an absolute dearth of evidence on specific intent — as there was in those cases in which the Indiana Supreme Court found such evidence lacking. See Faulkner v. State (1973), 260 Ind. 82, 292 N.E.2d 594 (broken window, flight, pistol; nothing disturbed or missing); Crawford v. State (1968), 251 Ind. 437, 241 N.E.2d 795 (broken window, hiding; nothing removed or disturbed); Goodloe v. State (1967), 248 Ind. 411, 229 N.E.2d 626 (flight, pry marks in open office; no burglary tools and nothing taken); Easton v. State (1967), 248 Ind. 338, 228 N.E.2d 6.
See also Lisenko v. State (1976), Ind. App., 345 N.E.2d 869 (pry bars, surrender; nothing missing or disturbed; Carter v. State (1976), Ind. App., 345 N.E.2d 847 (pistol, surrender; nothing missing or disturbed, no burglary tools).
. “[W]e must look to the evidence other than that concerning the breaking and entering alone to determine if there was sufficient evidence to show an intent to commit a felony.” Kondrup v. State (1968), 250 Ind. 320, 323, 235 N.E.2d 703, 705 (emphasis in original).
. See Carter v. State (1976), Ind. App., 345 N.E.2d 847, 848 n. 4, in which Judge Staton compiled appellate decisions finding sufficient circumstantial evidence on intent and concluded that they all contained some evidence of “the presence of burglary tools or of missing or disturbed property.”
. Supra note 5.
. Supra note 6 (defendant observed inside store loading a gun earlier in its rack). _ The Indiana Supreme Court used Kondrup to distinguish Easton, pointing out that the defendant in Easton was “sitting and watching television. Upon being discovered he got up and left, taking nothing.” 250 Ind. at 323, 235 N.E.2d at 705.
. (1975), 165 Ind. App. 471, 332 N.E.2d 843 (defendant wheeling refrigerator to which he claimed ownership).