The defendant in this ease contends in his brief there was “no evidence during the state’s case in chief [that] was ever introduced to show that the alleged stolen van was ever in fact stolen. No one testified that the van was stolen or that the appellant believed the van to be stolen.” Having squarely raised the issue, it is incumbent on this Court to determine whether the above allegation comports with the record. The jury did not find, as pointed out in Mr. Justice Maughan’s opinion, that there was an intent to deprive the owner of this property, because no specific instruction requiring such a finding was given. In addition, the only evidence purporting to bear on that element of the crime is that referred to in Mr. Justice Wilkins’ opinion. I am compelled to agree that there was a complete absence of probative evidence on a crucial element of the crime and that the defendant properly raised the matter before the trial court and this Court.
Accordingly, it is our duty under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), to remand the case with directions that the defendant be discharged. A remand for a new trial is not appropriate pursuant to the analysis stated in my concurring opinion in State v. Lamorie, Utah, 610 P.2d 342 (1980).