Ashurst v. State, 3 Div. 905

• Citation: 462 So.2d 999
• Decision Date: 09 October 1984
• Docket Number: 3 Div. 905
• Parties: Vic ASHURST, Sr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 999

462 So.2d 999

Vic ASHURST, Sr. v. STATE.

3 Div. 905.

Court of Criminal Appeals of Alabama.

Oct. 9, 1984.

Rehearing Denied Nov. 13, 1984.

Certiorari Denied Jan. 25, 1985

Alabama Supreme Court 84-229.

Stephen R. Glassroth and Rick Harris of Moore, Kendrick, Glassroth, Harris, Bush & White, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Operating a business called the Gold Mine, which dealt in the purchase of gold and silver, Vic Ashurst, Sr. was indicted and convicted for receiving stolen property in the first degree in violation of Alabama Code 1975, § 13A-8-17. The sentence of two years' imprisonment was suspended and Ashurst was sentenced to five months in the county jail.

I

Ashurst claims that the evidence was insufficient to convict him of receiving stolen property. Specifically, he disputes the sufficiency of the evidence to show that he knew or should have known that the merchandise was stolen. The record in this case is extensive and reveals a trial which this Court can only characterize as a battle wherein defense counsel, with relentless energy, contested and opposed the State's every effort to convict his client. Despite those efforts, the circumstantial evidence against Ashurst was sufficient to support the conviction.

Hannelore Bice was employed at Klein & Son Jewelers as an inventory control clerk. Ashurst operated the Gold Mine, a business which specialized in the purchase of gold and silver. Ashurst's wife and their seventeen-year-old son also worked there.

Between July of 1980 and February of 1981, Ms. Bice stole over $100,000 worth of merchandise from Klein's and sold it to the Gold Mine, receiving between $3,000 and $4,000. During this time, she made twenty-two trips to the Gold Mine, usually during her lunchtime. Most of the property the forty-two-year-old Bice sold to the Gold Mine was stolen, although "some jewelry and some silver" belonged to her. Usually, the property was new.

Ms. Bice testified that she sold silver flatware about ten or twelve times. On approximately six of those occasions the flatware was still in the original packaging. The flatware consisted of different patterns by different manufacturers.

She took jewelry to the Gold Mine about ten times. All the jewelry was new. Ms. Bice sold four diamonds to the Gold Mine, which she had stolen from Klein's. She testified that "most of the time when I sold a loose diamond that Mr. Ashurst was there, except one time", and that Ashurst "looked at them diamonds", although his son actually weighed and measured them.

During her twenty-two visits to the Gold Mine, Ashurst was present "about thirteen, fourteen times." Ms. Bice testified that, if Ashurst was present, "(h)e would either talk or counsel (his son) about the price of it" and that when he was present he "usually" made the final decision about the purchase price.

Ms. Bice testified that she never told anyone at the Gold Mine that the property was stolen. Each and every time a transaction was conducted, someone in the store asked her name, address and license number.

The particular offense for which Ashurst was indicted occurred on the 5th of February, 1981, when Ms. Bice sold some jewelry to the Gold Mine, which she had stolen from Klein's. Although the retail value of these items was over $5,000, Bice received $625. Ms. Bice stated that the "young Mr. Ashurst weighed it and actually paid me the money, but Mr. Ashurst was there." Ashurst "saw his son make the actual sale." He stepped into the office where Ms. Bice was sitting, but she did not recall the conversation they had.

Bill Heilpern, the president of Klein's at the time in question, testified, without objection, that Ms. Bice's actions would have made him "pretty suspicious" and that "when somebody comes in that many times with that much, I feel, and that's a personal opinion, I feel like there is no way on earth you wouldn't think that it was stolen." In Heilpern's opinion, Ms. Bice usually looked "sloppy". He testified that, if someone like her came into Klein's with just three different manufacturers of silverware, that would make him "quite suspicious". If she came in with just two, it would make him "pretty suspicious, too." Heilpern testified that 99% of the merchandise Ms. Bice stole from Klein's was "brand new".

Debby Matthews worked for Ashurst "somewhere around 1980" at Southern American Gold and Silver before Ashurst opened the Gold Mine. She testified that Ashurst told her to buy stolen property: "At one time he said to buy it. If we looked at something that looked to be kind of, you know, unusual or stolen, buy it real cheap because he would not get the money back from the Police Department."

It is undisputed that Ashurst complied with a municipal ordinance requiring second-hand gold and silver dealers to report their daily transactions to the Montgomery Police Department. Montgomery, Alabama, Ordinance No. 18-80 (1980). The report required "a brief description of the articles or property purchased, the date and hour of the purchase and a brief description of the person from whom the purchase is made, together with the address, Drivers License number, sex, race, and date of birth of such person." The record does show that Ashurst failed to list the quantity of much of the flatware he purchased from Ms. Bice and that the descriptions on the police report for the merchandise purchased from Ms. Bice were considerably less detailed than the description listed on the bills of sale.

Ashurst maintained that Ms. Bice told him that she had purchased the merchandise from Bellas Hess when the store closed. (See Issue II). He denied any knowledge that the property was stolen and contended that he was not even present on February 5th.

In reviewing the sufficiency of the evidence to support a conviction based on circumstantial evidence, the test to be applied is whether a jury might reasonably conclude that the evidence excludes every reasonable hypothesis except that of guilt. Dolvin v. State, 391 So.2d 133, 137 (Ala.1980); Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979).

"In reviewing the sufficiency of the evidence in criminal cases, we are to view the evidence and all inferences that may reasonably be drawn from it in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Whether evidence is direct or circumstantial, we must accept all credibility choices that tend to support the jury's verdict. United States v. Allison, 616 F.2d 779 (5th Cir.), cert. denied, 449 U.S. 857, 101 S.Ct. 156, 66 L.Ed.2d 72 (1980). The standard of review is whether a reasonably minded jury must necessarily have entertained a reasonable doubt of the defendant's guilt. If the jury could not reasonably have concluded that the evidence excluded every reasonable hypothesis but that of guilt, then we must reverse the convictions. United States v. Rodriguez 654 F.2d 315 (5th Cir.1981); United States v. Kelley, 630 F.2d 302 (5th Cir.1980)." United States v. Hinds, 662 F.2d 362, 366 (5th Cir.1981), cert. denied, 455 U.S. 1022, 102 S.Ct. 1720, 72 L.Ed.2d 140 (1982).

Under an indictment for receiving stolen property, the prosecution must prove that the accused actually knew that the property was stolen or that he had reasonable grounds to believe that it was stolen. "[I]f 'reasonable grounds for believing' exist, that element is established, although defendant may have had no 'knowledge', ... [I]f the jury believes beyond a reasonable doubt the existence of facts which were known to defendant and which are sufficient in the opinion of the jury to show the existence of 'reasonable grounds for believing' that the goods were stolen, and they were in fact stolen, no further inquiry in that respect need be pursued." Farzley v. State, 231 Ala. 60, 61, 163 So. 394 (1935); W. LaFave and A. Scott, Criminal Law 687 (1972).

"In most cases there is no direct testimony of the receiver's actual belief. Proof thereof must therefore be inferred from the circumstances surrounding his receipt of the stolen property." LaFave at 686. Guilty knowledge may be inferred from all the facts and circumstances surrounding the entire transaction concerning the accused's acquisition of the stolen property. Tombrello v. State, 431 So.2d 1355, 1357 (Ala.Cr.App.1983); Tyree v. State, 407 So.2d 580, 581 (Ala.Cr.App.1981). " '[G]uilty knowledge may be inferred from the fact that the receiver purchased the goods for very much less than their value.' Fulton v. State, 8 Ala.App. 257, 263, 62 So. 959 (1913)." Tyree, 407 So.2d at 581. "[A] very inadequate purchase price is a factor which points towards appellant's guilt." Fillmore v. State, 647 S.W.2d 300, 303-04 (Tex.App.1982). The fact that an accused maintained no records and failed to obtain the information required by statutes when purchasing merchandise are also circumstances which indicate guilt. Fillmore, supra. Applying these principles to the facts of this case, we find the evidence sufficient to support the verdict.

The offense of receiving stolen property is defined by Alabama Code 1975, § 13A-8-16:

"(a) A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.

"(b) If a person:

(1) On two separate occasions within a year prior to the commission of the instant offense of receiving stolen property is found in possession or control of stolen property; or

(2) Possesses goods or property which have been recently stolen; or

(3) Regularly buys, sells, uses or handles in the course of business property of the sort received, and acquired...