dissenting.
I respectfully dissent because I believe the majority decision excludes the mens rea of "knowingly" from Indiana Code seetion 35-42-3-2.
I. The Mens Rea of Kidnapping by Hijacking a Vehicle
The portion of Indiana Code section 385-42-3-2, relevant to this case, states,
(b) A person who knowingly or intentionally removes another person, by fraud, enticement, force, or threat of force, from one place to another:
(2) while hijacking a vehicle; commits kidnapping, a Class A felony.
Ind.Code § 85-42-8-2 (1998) (emphasis added).
Zimmerman contends that "[the crime of kidnapping is a malum in se crime and requires that the element of specific intent [be proven] beyond a reasonable doubt." Br. of Appellant at 5 (citing Smith v. State, 270 Ind. 479, 386 N.E.2d 1193, 1195 (1979)). Although the majority opinion does not discuss the mens rea of kidnapping or include a mens rea requirement when it defines "hijacking" as "exercising . unlawful or unauthorized control of a *1162vehicle by force or threat of force upon the vehicle's inhabitants," the majority's opinion can only be explained by exclusively applying the mens rea of "intentionally" to the element of "hijacking" as suggested by Smith. Op. at 1160-1161 (citing Clayton v. State, 658 N.E.2d 82, 87 (Ind.Ct.App.1995)).
When Smith defined kidnapping as a crime of malum in se, requiring the mens rea of "intent" to be proven beyond a reasonable doubt, it did so via interpretation of Indiana's kidnapping statute in effect at that time, Indiana Code section 35-1-55-1. Smith, 386 N.E.2d at 1194-95. Indiana Code section 35-1-55-1 provided:
Whoever kidnaps, or forcibly or fraudulently carries off or decoys from any place within this State, or arrests or imprisons any person with the intent of having such person carried away from any place within this State, unless it be in pursuance of the laws of this State or the United States, is guilty of kidnapping, and on conviction, shall be imprisoned for life.
Ind.Code § 35-1-55-1 (Burns 1975) (emphasis added). Indiana's current kidnapping statute broadens the mens rea requirement to allow convictions upon proof of either intentional or knowing conduct. See Ind.Code § 35-42-8-2. Consequently, Smith's exclusive requirement of "intent" is no longer good law.
Because Zimmerman gained access to Robertson's vehicle by "fraudulently" informing her that someone was trying to kill him, the element of "hijacking" is the heart of the dispute in this case. There is no independent mens rea requirement in the majority's definition of "hijacking" or in Indiana law. See Op. at 1160-1161; see also Wilson v. State, 468 N.E.2d 1375, 1378 (Ind.1984); Clayton, 658 N.E.2d at 87. As such, Indiana Code section 35-42-3-2's disjunctive mens rea of "knowingly" applies to the listed element of "hijacking" in kidnapping.
II. Application
The majority states: (1) "[tlhere is no evidence that Zimmerman accosted Robertson or made any threats to her in the event that she refused to continue driving him around town;" (2) "Zimmerman never demanded that Robertson remain in the car;" (8) "Zimmerman did not display any weapons;" and, (4) "[Zimmerman] did not strike [Robertson,] and he never took control of Robertson's vehicle." Op. at 1160-1161 (emphasis added)3
Referring to this evidence, the majority concludes that there was no evidence that Zimmerman controlled Robertson's vehicle by force or threat of force. .I would hold that this lack of evidence is only suggestive of the absence of intentional conduct, and not of the absence of knowing behavior. I believe that the record shows that the eighteen-year-old Robertson was reasonably fearful of the possibility that Zimmerman would use foree and, though no evidence shows that Zimmerman initially instilled this fear when he fraudulently gained entrance to Robertson's vehicle, the evidence does show that Zimmerman soon knew of Robertson's reasonable perception of fear after he refused to respond to her *1163demand to exit. Furthermore, he clearly used this knowledge to make good his escape. Simply said, Robertson's actions went from a Good Samaritan effort to help a man that she perceived to be in danger to involuntarily helping Zimmerman evade the law.
Under the standard of review announced by the majority, considering only evidence favorable to the verdiet and the reasonable inferences that can be drawn therefrom, I would hold that there is sufficient evidence in which a finder of fact could reasonably conclude that Robertson's fear of Zimmerman's potential use of foree caused her to navigate her vehicle in the manner that she did and prevented her from exiting her vehicle. This evidence includes: (1) Robertson's testimony that, after allowing Zimmerman in her vehicle, she wanted him to get out; (2) Robertson's demand to Zimmerman that "I want to stop and let you out row;" (8) Robertson's testimony that she was seared; (4) Robertson's testimony that she was hoping to get hit by another car in order to get out of the situation; and, (5) Zimmerman's influence upon Robertson's driving destinations. Tr. pp. 14-18 (emphasis added). A finder of fact could reasonably conclude from this testimony that Robertson's reasonable fear of Zimmerman's potential use of force, rather than her own volition, caused her to drive her vehicle from U.S. Highway 31 to State Road 185.4
There was also sufficient evidence for a finder of fact to reasonably conclude that Zimmerman, though not initially instilling fear in Robertson, came to know of Robertson's fear of him and that he used this fear to his advantage. Robertson informed Zimmerman that she wanted him to exit the vehicle, and Zimmerman failed to respond to this request. Tr. pp. 15-16. Rob Shaw, while tailing Robertson's car, noticed that Robertson looked visibly frightened.5 Tr. pp. 34, 36. Evidence of Robertson's visible fear, in combination with Robertson's unfulfilled request for Zimmerman to leave her vehicle, is sufficient evidence for the finder of fact to reasonably conclude that Zimmerman knew of Robertson's fear and took advantage of it, thereby kidnapping Robertson by hijacking her vehicle.6
Because Robertson reasonably felt threatened by force, navigated her vehicle *1164as a result of this perceived threat, and Zimmerman knew of and took advantage of Robertson's fear, I would affirm Zimmerman's conviction.
. The majority also notes that Robertson unlocked her car door for Zimmerman. Op. at 1160-1161. Although this is evidence that it was not Robertson's [ear that initially caused her to stay in her vehicle and navigate in the manner in which she did, this evidence does not indicate that Robertson did not subsequently develop such a fear after Zimmerman refused to answer her questions or get out of her vehicle.
. The majority may understandably wish not to allow a kidnapping conviction to be based entirely on the perceptions of the victim. However, the "knowing" element of kidnapping requires not only perceptions on the part of the victim, but the defendant's knowledge that the defendant is causing those perceptions. Perhaps this concern would be more paramount in this case had Zimmerman ceased his conduct as soon as it became obvious to him that he was placing Robertson in fear. Support for the proposition thai terminating an encounter at such a point would preclude a kidnapping conviction is found in Wilson. See Wilson, 468 N.E.2d at 1378 (noting that "the message intended for the would-be wrong doer [wishing to avoid a kidnapping conviction] is that if you are going to steal or commandeer a vehicle, let the people in it go"). However, Zimmerman not only remained in the vehicle after Robertson asked him to get out, but affirmatively directed Robertson's driving while knowing that Robertson was in fear. See Tr. p. 17.
In any event, "knowingly" is a disjunctive mens rea element in the kidnapping statute, and the facts of this case make clear that Zimmerman knew that Robertson's fear was what caused her to drive from U.S. Highway 31 to State Road 135.
. Robertson was so visibly frightened that she was seen "tightly clinching" a teddy bear after Zimmerman entered her car. Tr. p. 34. A jury could reasonably conclude that Zimmerman knew from this behavior that Robertson was frightened.
. The majority finds the fact that Robertson did not consider herself a "hostage" to be significant. Op. at 1161. However, being a *1164hostage is not an element of kidnapping. Rather, Robertson's involuntary removal from one place to another is significant under the elements of kidnapping. See Ind.Code § 35-42-3-2. Immediately after Robertson testified that she did not believe that she was a hostage, she testified that the reason that she did not try to get out of her vehicle was due to her fear that she did not know what Zimmerman would do if she attempted to leave her vehicle. Tr. p. 31.