¶1concurring in result with separate opinion.
¶2I believe M.Q.M. was correctly decided and a defendant may not be convicted of theft or auto theft without proof of intent to permanently deprive the owner of the item’s value or use. Nevertheless the evidence most favorable to the judgment is sufficient to meet this standard. I would therefore affirm Bennett’s convictions and I concur in the result.
¶3The majority attempts to distinguish the cases cited in M.Q.M. because they “did not directly address a defendant’s claim of insufficient evidence regarding the element to permanently deprive.” (Op. at 322.) I do not find that distinction meaningful. In all of the decisions cited in M.Q.M., our Indiana Supreme Court discussed the elements of theft. Regardless whether the court was defining the elements of theft for sufficiency or jury instruction purposes, the elements of theft are the elements of theft.
¶4Moreover, the three decisions relied on by the majority were decided in 1987, 1986, and 1985, while the cases cited in M.Q.M. are from 2000, 1991, and 1988. It is unnecessary to speculate why our Supreme Court more recently decided “permanent” deprivation is an element of theft; I simply believe we must follow the most current pronouncement of our State’s highest court. Accordingly, I would follow Chanley, In re Kouros, and Decker, as we did in M.Q.M., and hold the State was required to prove Bennett intended to permanently deprive Hardison of his car, knife, tool boxes, and tools.
¶5Nevertheless, I would affirm Bennett’s convictions. The facts most favorable to the auto theft conviction are that Bennett took Hardison’s car without permission on the night of October 22, 2005. When police located the car three days later, Bennett was in the driver’s seat and the motor was running. The clothing, socks, underwear, deodorant, and food bags in the car demonstrated Bennett had been living in the car. A reasonable jury could conclude from those facts Bennett did not intend to return Hardison’s car. I would accordingly affirm Bennett’s conviction of auto theft.
¶6Similarly, I find the evidence sufficient to convict Bennett of theft of the hunting knife, toolboxes, and tools. Those items were in Hardison’s car when Bennett stole it, and they were not in the car when the police recovered it. Regardless what Bennett did with those items, their absence from the vehicle demonstrates he had no intention of returning them to Hardison, and thus intended to permanently deprive Hardison of their use or value.
¶7For these reasons, I concur in the result.