concurring in part and dissenting in part.
I concur in that portion of the majority opinion which affirms appellant’s conviction for knowingly burning the motorcycle, but I am unable to agree with the remainder of the majority opinion.
I specifically concur in the dissent of Judge Kennedy, but feel compelled to express my reasons for my disagreement with the majority.
The majority has elected not to address an important issue presented to this court. That issue is whether the garage wherein the motorcycle was housed was a building within the intent of our statutes.
This case presents yet another opportunity for our courts to eliminate the continued nonsense of distinguishing between various types of structures for the purpose of ascertaining whether a burglary has been committed. In the case of the history of the offense of burglary, the attention of the court has been directed too often to the type of structure as opposed to the commission of an offense. The emphasis for too long has been placed on the wrong element of the offense. A wrongful act, if committed, stands committed, whether the “structure” had walls, doors, locks, windows, or anything else. The result has been a legal absurdity. Instead of placing importance upon the protection of ownership, use and enjoyment of personal property, our courts have become mired in the design and configuration of structures. This type of thinking leads to some silly and inconsistent results.
*216Let’s suppose, for a moment in this ease, that there had been two motorcycles. Assume further that they belonged to two adjoining neighbors. Neighbor A has his motorcycle in an enclosure with four walls, roof, a door which is locked, and you can even throw in a couple of locked windows, if desired. Assume further, that Neighbor B has his motorcycle within his “carport” not attached to his house. Neighbor B could not afford to build an all-encompassing structure. Assume that both motorcycles are stolen. Under the historical approach to the question, if a burglary has occurred and the view is adopted by the majority, the theft of A’s motorcycle would encompass burglary whereas the theft of B’s would not. The question is not from what structure the property was taken, but whether A & B are both entitled to the same protection and enforcement of the law. Our courts have become so involved over “types of structures” that they have lost sight of importance of the moment, i.e., the unauthorized and wrongful entry upon the property of another.
This court has the opportunity, under a new Criminal Code, to clear up the inconsistency that has abounded in this area. The new Code has recognized the longstanding element of the danger to persons within a dwelling or building. See § 569.-160.1(2) & (3), RSMo 1979, Burglary in the First Degree. The new Code suggests that there be no distinction between the burglarizing of dwelling houses and other buildings, see The New Missouri Criminal Code — A Manual for Court Related Personnel, § 14.21. This court should take the bold step and conclude that any structure, regardless of its shape, size, design or security system is a building within the meaning and intent of the statute.
I would not only conclude that the garage in the instant case was a building within the term and meaning of the statute, but would, by the decision herein, hold that any “structure” wherein property was housed, either temporarily or permanently for safekeeping, shall be a building within the term and meaning of the statute. I would affirm appellant’s conviction for burglary.
I cannot agree with the majority opinion concerning its finding that appellant was guilty of intentional burning, and by the same opinion, hold that the evidence was insufficient to convict him of stealing. Appellant challenges the evidence and asserts that it was so lacking that the issue should not have been submitted to the jury as a matter of law. The evidence revealed that appellant repeatedly sought help to load a motorcycle. The evidence reveals that the motorcycle was a police motorcycle. The majority acknowledges that appellant had dominion over the cycle for the purpose of burning it, but claims the evidence did not support his stealing of it.
This is a case of circumstantial evidence. Our courts have adopted the rule, in determining the sufficiency of the evidence, that we accept as true all of the evidence on the record tending to support the finding of guilt, together with inferences which can be reasonably drawn therefrom and will disregard contrary evidence and inferences. State v. Harris, 602 S.W.2d 840 (Mo.App.1980), citing State v. Morgan, 592 S.W.2d 796 (Mo. banc 1980) (vacated on other grounds, 449 U.S. 809, 101 S.Ct. 56, 66 L.Ed.2d 12 [1980]). Circumstantial evidence is sufficient to sustain a conviction, but “such facts in evidence relied upon to establish guilt must be consistent with each other and inconsistent with any reasonable theory of the innocence of the accused . . . (citations omitted). This rule is ‘realistically tempered in its application since “in a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilt, and they need not demonstrate impossibility of innocence ... the mere existence of other possible hypothesis is not enough to remove the case from the jury” ’ ”. Harris at 844.
As indicated by the majority opinion, the evidence revealed that appellant had dominion over the motorcycle. Indeed, the majority opinion makes use of this fact to support the conviction for burning. The majority opinion then concludes, as a matter of law, that the evidence was insufficient to sup*217port the burglary and theft. I cannot agree. The majority opinion cites State v. Siraguso, 610 S.W.2d 338 (Mo.App.1980) and agrees with appellant’s contention that the evidence supports no more than a guess or suspicion of the burglary and theft. A summary of the evidence reveals that the highway patrolman housed the cycle in his garage. In the early morning hours, appellant, on at least four occasions, tried unsuccessfully to secure help from others to “load” the cycle. After his initial efforts to secure help failed, he threatened to burn the cycle and it was later found burning in the front yard of a neighbor two doors away. During the attempt to secure help in loading the cycle, appellant exercised control over it. At trial, he offered the defense that others had sought his assistance in loading it.
The majority opinion holds that since there was no direct evidence showing appellant had possession of the cycle, his possession can only be deduced from his statement of intention to burn it. The majority opinion then concludes that since possession of recently stolen property was not proven by direct evidence “and, as an inference itself, affords no ground to infer that Bailey entered the garage to commit the burglary.” The majority opinion then asserts that “burglary and stealing was supported by no proven facts whatever but depended entirely upon speculation and conjecture.” I cannot agree.
Appellant disclosed to those from whom he sought help to load the cycle that if he could not get it loaded, he would burn it. Additionally, he alerted these same persons to listen for the town fire alarm, which sounded shortly after his last encounter with these persons. The majority opinion further concludes that “[wjhile the evidence requires the conclusion that someone must have removed the motorcycle from the garage, that circumstance alone makes no case against Bailey.” The evidence supports a conviction (even under the majority view) for the burning of the cycle. That same evidence supports a finding that appellant had dominion or possession of the cycle. There was evidence of a burglary of the garage and stealing of the cycle. There was evidence that appellant had possession of recently stolen property (i.e., the cycle for purposes of either loading it or burning it), and the majority opinion must agree that this is so in order to support its finding of burning. The unexplained possession of the stolen property would support a finding of guilt for burglary and stealing. State v. Myers, 551 S.W.2d 312 (Mo.App.1977) and State v. Denison, 352 Mo. 572, 178 S.W.2d 449 (1944).
Appellant offered evidence of others having the cycle and of burning it. The prosecution was not required to remove all possibility of appellant’s innocence. Even under Siraguso and Harris, the circumstantial evidence revealed a symphysis of circumstances consistent with a hypothesis of guilt and the mere existence of other possible hypothesis is not enough to have removed this case from the jury. The jury, as fact finder, bridged the mental and logical gap which the majority opinion appears unable to transverse under the whole of the facts and circumstances herein.
I agree with the majority opinion that the trial court did not abuse its discretion in denying a new trial upon alleged newly discovered evidence.
I would affirm the conviction for burglary and stealing along with the conviction of intentional burning.