dissenting.
I must dissent from the majority opinion wherein the majority finds that Defendant did not take property of the City "with intent to deprive the owner of said property." In the first place, intent is clearly shown in that Defendant used the City computer system for his personal business, well knowing what he was doing so and well knowing that it was unauthorized. I think the Court of Appeals properly focused upon Defendant's unauthorized use of the computer for monetary gain and upon the definition of property as used in the statute and as defined by Ind.Code § 85-41-1-2 (Burns 1979 Repl). Time and use are at the very core of the value of a computer system. To say that only the information stored in the computer plus the tapes and dises and perhaps the machinery involved in the computer system, are the only elements that can be measured as the value or property feature of that system, is incorrect.
I think it is irrelevant that the computer processed the data from various terminals simultaneously and the limit of its capacity was never reached by any or all of the stations, including the defendant's. It is also irrelevant that the computer service was leased to the City at a fixed charge and that the tapes or dises upon which the imparted data was stored were erasable and reusable. The fact is the City owned the computer system of all the stations including the defendant's. The time and use of that equipment at that station belonged to the City. Thus, when the defendant used the computer system, putting on data from his private business and taking it out on printouts, he was taking that which was property of the City and converting it to his own use, thereby depriving the City of its use and value. The majority says: "Thus, Defendant did not deprive the City of the 'use of computers and computer services' as the information alleged that he intended to do." I disagree. I feel that is exactly what he did and I think the Court of Appeals properly found so. I therefore would deny transfer and allow the Court of Appeals opinion to stand.