dissenting.
I respectfully dissent. While I fully agree with the statement of the law set forth in the majority opinion, I apply that law to reach a decision contrary to my colleagues.
Like my colleagues and the respected and experienced trial court judge who heard this case, I struggle with the facts presented and even more with the implication that our decision may hold for other cases. At the one extreme, we do not want to condone the taking of property by fraudulent promises and representations. At the other, we do not want to criminalize the inability of a debtor to make payments contracted for in good faith.
To constitute theft on the facts presented here, there must be fraud in the inception; Le., Long entered into this transaction with the intention that he was not going to pay for the property conveyed. There is no direct evidence of such an intention, and to sustain the conviction, there must be cireumstantial evidence supporting such an intention beyond a reasonable doubt. My colleagues point to the following evidence as providing such support: First, the fact that Long told Wright that he had no money, but that "he was having some money transferred in from somewhere out of state." Tr. at 7. Second, the fact that Long's "very cordial" relationship with Wright changed when he did not make the first payment due under the contract. Third, the fact that Long removed the personal property when he vacated the premises without warning or explanation.
The trial court found, and my colleagues agree, that this evidence supported a reasonable inference that Long never intended to pay Wright. While I believe that these facts are established and are not inconsistent with an intention on the part of Long that he would not pay for the property, I do not think that they give rise to an inference of such an intention.
We discussed permissible evidentiary inferences in Lewis v. State, 535 N.E.2d 556 (Ind.Ct.App.1989), saying:
An inference is a process of reasoning by which a fact or proposition sought to be established is deducted as a logical consequence from other facts, or a state of facts already proved or admitted.... When an inference reasonably can be drawn from the evidence, such inference constitutes relevant evidence to be considered by the .... However, a factfinder's determination cannot stand if it is based upon mere speculation or conjecture or on an inference on another inference.
Id. at 559 (Citations omitted.)
First, there is Long's statement that he had no money, but was having some money transferred in from out of state. This statement supports the inference of intention necessary to support the conviction only if it is shown to be false. Were it shown to be true, it would support a contrary inference; namely, that Long intended to pay Wright when he received the money from out of state. Here, we have no evidence which establishes either the truth or falsity of Long's statement. In the absence of such evidence, I believe it is error to draw any inference of Long's intent from it.
Second, we have the change in Long's relationship with Wright from very cordial to hostile. To me, it is conjecture to infer that the reason underlying the change was an intention not to pay for the property. People facing financial difficulties also face emotional challenges and oftentimes do not behave well. This is particularly true vis & vis their ereditors. Thus, while an intention not to pay may give rise to such a change in attitude, I believe that such a *200change could also come about as a result of embarrassment, shame, or frustration. I do not believe it permissible to draw an evidentiary inference where a contrary inference is equally likely.
Finally, there is the fact that Long took the personal property when he vacated the real estate without notice to Wright. To me, Long's action in mid-April says nothing about his intention in mid-February. As before, this evidentiary fact may be consistent with intention on Long's part not to pay for the goods, but is equally consistent with the conclusion that Wright had intended to pay for the goods when he signed the contract and vacated the premises when he learned that he would not be able to pay as agreed for the real estate, taking only the tangible personal property that had become his property at closing when Wright failed to retain a purchase money security interest in the goods.
In baseball, ties go to the runner; in eriminal procedure, they go to the defendant. I would reverse Long's conviction.