859 P.2d 1387 (Idaho 1993), 19498, State v. Barnes

Docket Nº:19498.
Citation:859 P.2d 1387, 124 Idaho 379
Opinion Judge:BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Appellant-Cross Respondent, v. Eugene Leroy BARNES, Defendant-Respondent-Cross Appellant.
Attorney:Larry EchoHawk, Atty. Gen., and Michael Kane, Deputy Atty. Gen., argued, for appellant. Gregory Jones, Kootenai County Public Defender and Jonathan Hull, Deputy Public Defender, argued, Coeur d'Alene, for respondent.
Judge Panel:JOHNSON, TROUT and SILAK, JJ., concur.
Case Date:September 27, 1993
Court:Supreme Court of Idaho
 
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Page 1387

859 P.2d 1387 (Idaho 1993)

124 Idaho 379

STATE of Idaho, Plaintiff-Appellant-Cross Respondent,

v.

Eugene Leroy BARNES, Defendant-Respondent-Cross Appellant.

No. 19498.

Supreme Court of Idaho, North Idaho.

September 27, 1993

Larry EchoHawk, Atty. Gen., and Michael Kane, Deputy Atty. Gen., argued, for appellant.

Gregory Jones, Kootenai County Public Defender and Jonathan Hull, Deputy Public Defender, argued, Coeur d'Alene, for respondent.

BISTLINE, Justice.

I.

The evidence presented at the preliminary hearing showed that in 1983, a new Chevrolet pick-up was stolen from Appleway Chevrolet Inc., a Spokane, Washington, car dealership. In 1990, Barnes was found in possession of the pick-up truck. Barnes may have been in possession of the truck since 1983. In 1987, Barnes told his sister that the truck was "hot."

In 1991, Barnes was charged with grand theft by possession of stolen property, a violation of I.C. § 18-2403(4). Barnes moved to dismiss the information arguing that: (1) the I.C. § 19-402(1) statute of limitations had expired, and (2) there was insufficient evidence to bind him over for trial. The district court denied the motion to dismiss on the first ground but granted the motion on the second ground.

The district court found that the statute of limitations had not expired because the offense charged was a "continuing offense." The court viewed I.C. § 19-402(1) statute of limitations as not beginning to run until 1990, when the truck was seized, thus ending Barnes's continuing possession of it.

As for Barnes's second argument, the district court noted that one of the essential elements of the crime of theft is that some person other than the defendant be the owner of the alleged stolen item. I.C. § 18-2403. Idaho Code § 18-2402(6) defines the term "owner" to mean "any person who has a right to possession [of the piece of property] superior to that of the taker, obtainer or withholder." The district court concluded that the State had not shown there was an "owner" of the truck

Page 1388

[124 Idaho 380] at the preliminary hearing because Appleway Motors had lost its right to possession by failing to initiate a cause of action against Barnes within the I.C. § 5-218(3) three year statute of limitations. In so ruling, the district court noted there was no "discovery rule" exception to I.C. § 5-218(3), so the fact that Appleway did not...

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