dissenting.
I dissent from the Majority Opinion for two reasons:
1. the Majority has used the wrong standard of review.
2. there is insufficient evidence to support beyond a reasonable doubt the essential element of mens rea.
The standard of review in a criminal action is not as the Majority suggests: "... substantial evidence supporting the judgment," but "... substantial probative evidence to prove each element beyond a reasonable doubt.." (Emphasis added.) McBroom v. State (1988), Ind., 530 N.E.2d 725 at 728.
There is a lack of evidence to support the mens rea element of theft beyond a reasonable doubt. The evidence relied upon by the Majority supports the element of unauthorized control, but it does not support the absolutely necessary element of mens rea. The evidence clearly shows that Brant worked as a mechanic for Cooper, a used car dealer, and made repairs on cars. In return for these mechanical services, Brant was to receive the use of the car in question and the title to the car.
The critical date that relates to the mens rea is May 5th, 1987. On this date, Brant had a telephone conversation with Cooper. *192Brant was in Cooper's office and standing at Cooper's desk where the title was kept in a drawer. After the telephone conversation ended, a witness testified that Brant stated to him after taking the title from the drawer, "I'll settle with Cooper later," then walked out of the office with the title in his hand. This is the only evidence of Brant's mens rea on the 5th Day of May 1987.
The evidence relied upon by the Majority relates to actions of Brant after the 5th Day of May. In its opinion, the Majority states: "... logically, Brant knew that without fulfilling his bargain with Cooper, he had no right to take the title." The fact that Brant did not "settle with Cooper later" does not relate to his mens rea on the 5th day of May but to another element-unauthorized control.
The information fixed the date upon which mens rea must be established beyond a reasonable doubt by the State. Brant's later intent to not fulfill the bargain that he had made with Cooper is not supportive of the mens rea element needed here for a criminal conviction of theft on May 5, 1987. The evidence supports a possible civil conversion action, but it does not support a criminal conviction for theft. Therefore, I dissent.