(dissenting).
[¶ 33.] The majority opinion strains in Issue 1 to conclude that the only legitimate inference is that Holzer intended to commit sexual contact on one or more of the women in Spronk’s home. Nonsense. This weirdo is so weird any speculation about his unknown intent is just that, pure speculation. The evidence presented at trial was “too tenuous to support a verdict beyond a reasonable doubt” that Holzer, who was attempting to enter the Spronk residence, intended to commit sexual contact without consent once inside the home. State v. Halverson, 394 N.W.2d 886 (S.D. 1986).
[¶ 34.] The- majority opinion unsuccessfully attempts to distinguish the Halverson ease from this case. While these two cases are not factually identical, the issues are certainly similar. Halverson attempted to enter the home of two women at night by prying and tearing on a bedroom screen window.7 He admitted that he was a “window-peeper” and tampered with the screen to improve visibility, but did not intend to gain entry into the trailer house. Halverson was convicted of attempted burglary with the intent to commit assault therein. In reversing this conviction, this court stated:
The determination of the sufficiency of the evidence to submit a case to the fact *657finder ‘may depend upon the difference between pure speculation and legitimate inference from proven facts.’
Id. at 888 (citations omitted).
[¶ 35.] We explained that while the evidence clearly showed that. Halverson attempted to enter the home in the nighttime, “the evidence is purely speculative on whether defendant’s intent in attempting to do so was to commit an assault....” Id. In reversing, we rejected the State’s argument that Halverson would have “most likely” committed assault: “[t]his evidence, while it might permit conjecture and speculation as to what was ‘most likely’ to occur, is too tenuous to support a verdict beyond a reasonable doubt that [Halverson] intended to commit an assault in attempting to enter the trailer.” Id. Therefore, we held that the evidence was not “sufficiently compelling or persuasive to support a finding beyond a reasonable doubt that defendant intended to commit an assault in the course of the attempted break-in.”8 Id.
[¶ 36.] Similarly, Holzer attempted to break-in to the Spronk residence during the nighttime by forcibly pulling on the sliding glass door. Like the Halverson case, this is the only legitimate inference that can be made. However, the majority opinion strains to persuade that the only legitimate inference is that Holzer intended to commit sexual contact on one or more of the women in Spronk’s home. For example, the majority opinion claims:
If his purpose was to steal the purse for monetary gain, he logically would have fled the crime scene with his proceeds. As he remained, a reasonable inference drawn from the theft of the purse is that Holzer wanted to obtain keys to enter the house. If his intent was to continue his thefts in the house, a house full of college girls provided questionable financial potential compared with some of the other homes in Sioux Falls....
Holzer wore a blue t-shirt, with holes cut out for the eyes and nose, to cover his identity. He ran from the police when told to stop. Finally, when the police did apprehend him, the front of his pants were ‘wet’ around the pocket and zipper area, supporting a legitimate inference that the wetness was caused by semen, indicating Holzer’s intent in entering the house was for further sexual gratification.
(emphasis added).
[¶ 37.] It is obvious that the majority opinion incorrectly stacks inference upon inference to conclude that specific intent was established. See State v. Burton, 235 Kan. 472, 681 P.2d 646, 651-52 (1984) (stating that “presumptions and inferences may be drawn only from facts established and presumption may not rest upon presumption or inference on inference.” (citations omitted)). Setting aside the incorrect stacking of inferences, the inferences themselves could only have arisen if the jury, or majority opinion, engaged in conjecture and speculation. We have previously determined that regardless whether the evidence is direct or circumstantial, it must raise a legitimate inference of guilt. In other words, it must do more than create conjecture, speculation or suspicion.
[¶ 38.] Holzer’s conduct does not provide substantial evidence to support his conviction for attempted burglary with the intent to commit sexual contact. It is pure speculation to conclude that Holzer was satisfied by the minimal amount he took from the purse. It is also pure speculation to conclude that the college girls had nothing of value to steal from their home merely *658because they were college girls. Furthermore, the fact that he stole a purse does not give rise to a legitimate inference that he wanted to commit sexual contact without consent. It is also pure speculation to conclude that Holzer had the intent to commit sexual contact once inside the Spronk home. After all, did he not sexually gratify himself before the police arrived? If the prior purse stealing excludes intent to steal, why does not his prior ejaculation exclude intent to commit sexual contact? The attempt at logic in the majority opinion defies logic.
[¶ 39.] Additionally, Holzer did not have any weapons in his possession that night. He was attempting to enter a home where six college girls were temporarily living. Is it reasonable to infer that six college women could not protect themselves against Holzer, who was unarmed. Furthermore, if he intended to commit sexual contact, why did he not approach,- touch or grab Spronk when she left the security of the house to lock her friend’s car? Nobody knows - it is pure speculation.
[¶ 40.] While reasonable inferences may be drawn' from the facts and conditions shown, they cannot be drawn from facts and conditions “merely imagined or assumed.” Burton, 681 P.2d at 652 (citation omitted). The foundation for this conviction is an incorrect stacking of inferences and assumptions. Furthermore, the circumstantial evidence reveals that “it is just as likely, if not more likely” that a reasonable hypothesis of unknown intent best explains Holzer’s weird conduct. Therefore, the evidence cannot be said to rise to the level of proof beyond a reasonable doubt..
[¶ 41.] In summary, three things are clear:
1) There simply is no evidence that this weirdo intended physical contact with anyone;
2) The evidence is that he was into theft, scare or shock tactics and not physical contact; and
3) He was charged with a specific intent crime, not a.general intent crime, and the State did not prove either.
All the State proved as to intent is pure speculation and, unless we overrule Halverson, that is not enough.
[¶ 42.] The State’s evidence of Holzer’s specific intent at the time of entry “required the jury ‘to cross the bounds of permissible inference and enter the forbidden , territory of conjecture and speculation’ and therefore was insufficient as a matter of law to convict [Holzer] of the burglary charge.” Johnson v. United States, 613 A.2d 888, 906 (D.C.Ct.App.1992) (citations omitted). Therefore, the trial court abused its discretion in failing to grant Holzer’s motion for Judgment of Acquittal on the basis of insufficient evidence and his conviction should be reversed.9
[¶ 43.] AMUNDSON, Justice, joins this dissent.
. Ten days after this incident, Halverson was again observed window peeking and attempting to break into the apartment of three other women. He- was found guilty of window peeking for this offense. Id. at 887.
. The majority opinion’s claim about the thirteenth juror is nonsense. We are only suggesting that this court do exactly what this court did in Halverson. That is, determine that the evidence was more speculation than sufficient and reverse and remand. The simple fact is that the State overcharged the defendant considering the evidence they were able to produce. See Halverson, 394 N.W.2d at 888 (stating that "[t]he determination of the sufficiency of the evidence ... 'may depend upon the difference between pure speculation and legitimate inference from proven facts.’ ”).
. But for this speculation requiring reversal, I would agree with the majority opinion's determination in Issue 2 that the trial court did not abuse its discretion in allowing the' State to refer to the fact that Holzer’s pants were wet in the zipper area at the lime of his arrest.