concurs in result in part and dissents in part with opinion.
SULLIVAN, Judge, concurring in result in part and dissenting in partI concur with respect to Issue II, the Conspiracy conviction. I also concur with respect to Issue I, but not upon the basis used by the majority to affirm the conviction for Criminal Recklessness. The majority rationale is that there is sufficient circumstantial evidence from which the trial court could have reasonably concluded that Wallace himself fired shots into the house. I do not believe such inference is reasonable.
There were four occupants in the vehicle, one of whom fled, when Officer Smith stopped the car. Four firearms, including a shotgun, were found near the car. Only two of the three handguns were connected with shell casings found at the scene of the shooting, although casings from the shotgun in question were also found at the scene. Wallace was not tied to any particular weapon of the four, although it is reasonable to infer that he was in possession of one of the guns. In my view, it is impossible to conclude that Wallace fired the firearm in his possession into the house.
Be that as it may, although charged as a principal, it was appropriate to convict Wallace as an accomplice. Wright v. State (1997) Ind., 690 N.E.2d 1098, reh’g denied. For such a conviction it is not necessary that the defendant himself committed each element of the crime. Id. Such was the evidence in the case before us. For this reason I concur in the affirmance of the conviction for Criminal Recklessness.
The facts recited above, however, lead to my dissent as to the Carrying a Handgun Without a License. The facts are not inconsistent with Wallace’s possession of the shotgun rather than one of the three handguns. There is no evidence to connect him to one of the handguns other than his presence in the vehicle. I respectfully disagree that it is permissible to conclude that all four occupants of the vehicle were in constructive possession of each of the four weapons.
I would vacate the conviction for Carrying a Handgun Without a License and would affirm the convictions for Conspiracy and Criminal Recklessness.