¶1concurring in result.
¶2The statute which creates the crime of conspiracy in Indiana specifically requires that the state "must allege and prove ... an overt act in furtherance of the agreement." 1C. 85-41-52 (Burns Code Ed.Repl.1994). The majority decision here holds that the overt act or acts alleged need not be proved. The opinion would seem to permit a conviction when none of the alleged overt acts are proved, provided that some unalleged overt act is proved. Such view would appear to render meaningless the requirement that at least one overt act be alleged and proved. It seems unlikely that it was the intent of our General Assembly, in choosing the language of the statute, to permit one particular overt act to be alleged yet a totally different overt act to be proved.
¶3There is some authority for the proposition that an overt act is not an element of the crime of conspiracy and that even if such an act must be alleged, proof of that act is not necessary. See 16 Am.Jur.2d, Conspiracy § 40 (1979). In United States v. Harris (1976) 7th Cir., 542 F.2d. 1283, cert. denied (1977) 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779, for example, the court held that overt acts are admissible whether or not charged. If an uncharged overt act is proved but the charged overt act is not proved, such cases would seem to hold that there is a variance but that the variance is not fatal unless the defendant's substantive rights were prejudiced. Horris supro at 1300. Be that as it may, in light of the specific language of the Indiana statute, it does not seem appropriate to permit the state to allege one act yet obtain a conviction for an entirely different act. Support for this view may be drawn from Parker v. State (1991) 1st Dist.Ind.App., 567 N.E.2d 105, 109, trans. denied, citing Smith v. State (1987) Ind., 516 N.E.2d 1055, 1062, cert denied (1988) 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 347. Those cases state that the essential elements of the erime include not only the agreement to commit the underlying felony, e., a " '[cloneurrence of sentiment' ", but as well, "'cooperative conduct in the criminal enterprise'", ie., the overt act. Parker, supra at 109.
¶4My view in this regard does not prompt a dissent, however. The conspiracy charge involved did not allege merely the confinements of Weist and Ingalls which constituted the two confinement crimes for which Parker was convicted. The conspiracy charge included overt act allegations concerning confinements of correction officers Millstead and *1033Gorsuch, as well. Accordingly, proof of the Weist or Ingalls confinements were not essential to proof of one or more of the overt acts alleged in the conspiracy charge. It is for this reason that I concur in result with respect to Issue 1. I fully concur as to Issue 2.