¶1(Dissenting).
¶2I am constrained to dissent from the majority opinion since it fails to conform to time-honored principles of appellate review. This Court has previously stated in literally scores of cases that it will not address an issue raised for the first time on appeal.
¶3The majority opinion is based on the premise that there is a lack of reasonable support in the evidence for the jury’s conclusions that the van in question was stolen and that the defendant formed the criminal intent necessary to constitute the offense of possession of stolen property. However, this Court is not to act as fact-finder, but is bound to survey the facts contained in the record in the light most favorable to the judgment below.
¶4Additional pertinent facts not recited in the main opinion are abstracted from the record as follows: At the time of defendant’s arrest, the key was in the ignition which had been tampered with such that the tumblers were missing and the lock could be lifted out of the socket. It was stipulated at trial that defendant had been driving the van, and his girlfriend, Lori Pledger, testified that he had driven it for several days. It was also stipulated that the van had been “missing’ from the U & S Motor Company parking lot for three days and the vehicle registration and certificate of title were stipulated as being those to the van in question.
¶5Defendant was arrested for theft, and charged therewith, by information, which alleged that he received, retained, or disposed or the property of another knowing that it had been stolen, or believing that it probably had been stolen.
¶6The jury found the defendant guilty as charged. When defendant appeared for sentencing, defense counsel again moved for a dismissal, or for a new trial, on the basis of a newly-discovered bill of sale from Robert and Raina Robertson to U & S Motors. Defense counsel again claimed that his case had been prejudiced by the amendment to the information. The defense motions were denied, and defendant was sentenced to between 1 and 15 years at the Utah State Prison.
¶7In light of all of the facts, I deem the concern of the majority that the prosecution failed in its proof that the van was stolen to be wholly unfounded. The defendant himself obviated the necessity of further proof of theft by stipulating that the van was “missing.” In the obvious context of its use, the term “missing” was tantamount to the use of the term “stolen.” This is borne out by the undisputed fact that defendant never challenged the quantum of proof of theft at trial, nor does he attempt to raise it as an issue on appeal. To conclude, as does the majority, that the term “missing” does not connote theft in the context of its use in this case, is to sanction invited error since the prosecution and the trial court no doubt relied upon the stipulation as sufficient proof of the essential element of theft.
¶8*405I also deem the concern of the majority as to a lack of any kind of proof of criminal intent to be without substance. The prosecution clearly presented evidence from which the jury could reasonably infer that defendant possessed the necessary criminal intent. That evidence consists of the following: (1) the stipulation that the van was missing; (2) defendant’s possession of the van, coupled with his having driven it for several days; (3) the ignition had been tampered with; and (4) defendant’s unexplained possession. All of such evidence, although it be circumstantial, readily gives rise to the reasonable inference that defendant knew that the van was, or probably was, stolen and that he was in fact depriving the owner thereof.
¶9In Barnes v. United States,
Possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference and find, in the light of the surrounding circumstances shown by the evidence of the case, that the person in possession knew the property had been stolen.
¶10The Court went on to say:
In the present case we deal with a traditional common-law inference deeply rooted in our law. For centuries courts have instructed juries that an inference may be drawn from the fact of unexplained possession of stolen goods.
¶11This Court has long recognized this elementary principle of law. Most recently, in State v. Burr,
... it is a fact of life that one in possession of stolen property who makes no explanation as to how he came to be in possession is apt to be under some adverse consideration as to his honesty; and if he has an explanation as to how he innocently came into possession of the stolen property, he would certainly improve his situation by giving his account of how it happened to the jury.
¶12I now turn to the actual matters defendant urges upon us. His basic argument is that the state failed, as a matter of law, to prove beyond a reasonable doubt every element of the crime with which he was charged,
¶13A trial court may properly permit the prosecution, at the close of its case in chief, to amend the information filed in the case to conform to the evidence presented, provided no prejudice thereby accrues to the defendant.
¶14The applicable statutory provision
A person commits theft if he receives, retains, or disposes of the property of another knowing that it has been stolen, or believing that it probably has been stolen, ... with a purpose to deprive the owner thereof.
¶15The elements of the offense may thus be stated as: (1) the actor must receive, retain, or dispose of the property of another; (2) the actor must know the property has been stolen or believe the property to probably have been stolen; and (3) the actor must *406have a purpose to deprive the owner of the property.
¶16Specific ownership of the subject property is not an element of the offense of theft, although it may be alleged in the information.
¶17There being no further valid assignments of error in the trial proceedings, I would affirm the conviction and the judgment of the trial court. Inasmuch as the majority of the Court has seen fit to address issues never raised by the parties, and hence not ruled upon by the trial court, the only reasonable alternative disposition of this appeal should be to remand for a new trial on all issues rather than to set aside the jury verdict and discharge the defendant.
¶18. For a sampling of recent cases so holding see the following: State v. Valdez, Utah, 604 P.2d 472 (1979); State v. Laird, Utah, 601 P.2d 926 (1979); Lamkin v. Lynch, Utah, 600 P.2d 530 (1979); Maltby v. Cox Construction, Utah, 598 P.2d 336 (1979); Heath v. Mower, Utah, 597 P.2d 855 (1979); Themy v. Seagull Enterprises, Utah, 595 P.2d 526 (1979).
¶19. State v. Daniels, Utah, 584 P.2d 880 (1978).
¶20. U.C.A., 1953, 76-6-408.
¶21. 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).
¶22. Utah, 579 P.2d 331 (1978); see also State v. Potello, 40 Utah 56, 119 P. 1023 (1911).
¶23. State v. Housekeeper, Utah, 588 P.2d 139 (1978); State v. Gutheil, 98 Utah 205, 98 P.2d 943 (1940).
¶24. U.C.A. 1953, 77 21-43; see also U.C.A., 1953, 77 17 3 and State v. Rohletter, 108 Utah 452, 160 P.2d 963 (1945).
¶25. u.C.A., 1953, 76-6 -408.
¶26. Note that even a person with an interest in the property can “steal” it from another with an interest. See U.C.A., 1953, 76-6-402(2); State v. Parker, 104 Utah 23, 137 P.2d 626 (1943).
¶27. State v. Simmons, Utah, 573 P.2d 341 (1977).
¶28. U.C.A., 1953, 77-21 20, 77 21 42.
¶29.See State v. Lamorie, Utah, 610 P.2d 342 (1980).