dissenting.
I respectfully dissent. In my opinion, there was sufficient evidence presented at trial to support Atkins's convictions on all four counts of theft, IND.CODE 85-48-4-2(a), and conspiracy to commit theft, IND. CODE 35-41-5-2.
The evidence at trial indicated Officer Haywood made initial telephone contact with Clyde Lewis (Lewis) and Atkins regarding whether or not the requested vehicles had been stolen. Officer Haywood specifically asked Lewis if he had the cars. Lewis replied affirmatively. Later, calling the same telephone number, Officer Hay*1185wood spoke with Atkins and made arrangements for the stolen vehicles' delivery. Lewis, Atkins and others were arrested at a motel when the stolen vehicles were subsequently delivered as planned.
The majority opines Atkins cannot be convicted on four counts of theft because he was not in possession of all four vehicles (not driving all four vehicles) at the time of the arrest. I disagree with this conclusion.
Circumstantial evidence alone may support a conviction. Grimes v. State (1983), Ind., 450 N.E.2d 512, 518. When the sufficiency of circumstantial evidence is in question, such evidence need not be adequate to overcome every reasonable hypothesis of innocence. Cireumstantial evidence is sufficient if an inference may reasonably be drawn from the evidence which supports the verdict. Lovell v. State (1985), Ind., 474 N.E.2d 505, 507. Though evidence is circumstantial, a verdict upon which reasonable men may differ will not be set aside. Survance v. State (1984), Ind., 465 N.E.2d 1076, 1081.
In this case, there is no question the vehicles were stolen. When the contact, who turned out to be an undercover police officer, spoke with Atkins on the telephone, arrangements were made for the stolen vehicles' delivery. The cars were to be delivered, at one time, to the contact for his inspection. Given this arrangement, we find the trier of fact could reasonably infer the other drivers merely served as a conduit for the carrying out of Lewis's and Atkins's plan. The unexplained possession of recently stolen property alone is a circumstance from which a jury is entitled to draw an inference of guilt and may be sufficient to support a conviction. Ward v. State (1982), Ind., 439 N.E.2d 156, 159.
I further find there was sufficient evidence presented to support the conspiracy convictions. In Williams v. State (1980), 274 Ind. 94, 409 N.E.2d 571, our Supreme Court, speaking through Justice Pivarnik, stated:
[This Court has explained conspiracy in various terms. We stated in Kelley v. State, (1936) 210 Ind. 380, 394, 3 N.E.2d 65, 72, that there must be an agreement, in the sense of a common purpose and understanding, to commit the intended felony, by joining at its formation or by participating in it after it has been formed. It is sufficient if the minds of the parties meet understandingly to bring about an intelligent and deliberate agreement to commit the offense, even though the agreement is not manifest by any formal words. To prove a conspiracy, the prosecution does not need to show a formal arrangement or the parties' use of specific words.
A conviction may rest on circum-stanmcial (sic) evidence alone; while evidence of a mere relationship or association is not sufficient, a conspiracy may be inferred from acts of the parties in pursuance of an apparent criminal purpose they have in common. (Citations omitted, emphasis added).
409 N.E.2d at 573.
Our standard of review requires us to examine only evidence favoring the judgment, together with reasonable inferences therefrom. Everroad v. State (1982), Ind., 442 N.E.2d 994, 1003. Accordingly, in my opinion, there is sufficient evidence from which a jury could reasonably infer Atkins acted in concert with Lewis with an intent to exert unauthorized control over the stolen vehicles.
I would affirm the convictions on all counts.