Capshaw v. State, 86-59

CourtUnited States State Supreme Court of Wyoming
Citation737 P.2d 740
Docket NumberNo. 86-59,86-59
PartiesGary CAPSHAW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date28 May 1987

Page 740

737 P.2d 740
Gary CAPSHAW, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
No. 86-59.
Supreme Court of Wyoming.
May 28, 1987.

Page 741

Leonard D. Munker, State Public Defender, and Julie D. Naylor, Appellate Counsel, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Terry L. Armitage, Legal Intern, for appellee.


THOMAS, Justice.

Does § 6-3-403(a)(i), W.S.1977, Cum.Supp.1985, which proscribes buying, receiving, concealing or disposing of property with the knowledge, belief or reasonable cause to believe that it was obtained in violation of law, encompass an element of specific intent? This is the essential issue to be resolved in this appeal. Gary Capshaw also contends that there was insufficient evidence to sustain his conviction. The district court ruled that specific intent was not an element of this crime and refused to give proffered instructions with respect to specific intent. It also denied Capshaw's motion for a judgment of acquittal. We agree with these rulings by the trial court and affirm Capshaw's conviction.

In the brief filed in his behalf, Capshaw sets forth this statement of the issues:

"I. Whether the failure of the judge to instruct the jury that the crime charged was a specific intent crime violates due process and requires reversal.

"II. Whether there exists insufficient evidence in the record to sustain appellant's conviction on appeal."

In its responsive brief, the State of Wyoming offers this statement of the issues:

"I. Was the failure of the judge to instruct the jury that the crime charged was a specific intent crime grounds for reversal?

"II. Was the evidence presented to the jury sufficient to sustain the conviction of receiving, concealing or disposing of stolen property?"

On the night encompassing the late evening hours of July 24, 1985, and the early morning hours of July 25, 1985, a set of B.J. Hughes brand rod tongs and a set of B.J. Hughes brand tubing tongs were stolen from an oil rig site in the Salt Creek Oil Field in Natrona County, Wyoming. These were the property of Dunbar Well Service and must have been taken sometime between 5:00 P.M. on July 24, 1985, and 6:30 A.M. on July 25, 1985. They were identifiable by serial numbers which were maintained in the records of Dunbar Well Service. They also were distinctive because, while originally painted orange, they had been painted red, and worn areas permitted the orange paint to show through.

About a week prior to the theft, Ernie Robb, Jr. had gone to a body shop owned by Capshaw's father to look for a set of pulling tongs and a sand pump. He encountered Capshaw there, and Capshaw advised him that he had a set of Hellman Kelly tubing tongs that he wanted to sell. Ernie Robb, Jr. said that he would inform his father. At approximately 6:00 A.M. on July 25, 1985, Capshaw telephoned Robb and said that he had the tongs and requested that they meet. Robb did meet Capshaw at about 6:30 in the morning at Riverbend Road in Mills, Wyoming. The meeting was held around the side of a building at a car lot on Riverbend Road. At that meeting, Capshaw was accompanied by an unidentified 6'1", light complected, 190-pound average looking individual who was driving a white pickup. A set of rod tongs and tubing tongs were in the back of the pickup covered by a tarp. At that time, Capshaw offered to sell both sets of tongs to Robb for a total price of $8,000, $5,000 for the tubing tongs and $3,000 for the rod tongs. Robb again advised that he would inform his father.

The following day Robb went to Capshaw's father's shop, and after he had talked with the same individual who had been with Capshaw on the previous morning, the rod tongs and the tubing tongs which had been stolen from Dunbar Well Service were unloaded from the same white pickup and placed on Robb's truck so that he could deliver them to the oil rig of Ernie Robb, Sr. Robb's father then suggested to

Page 742

him that these tongs might be stolen, and Robb took them to Edgerton where the chief of police identified the tongs by their serial numbers as having been stolen from Dunbar Well Service. Robb then returned the tongs to Dunbar Well Service.

After he had received the tongs, Robb was called on the telephone twice by Capshaw. In those telephone calls, Capshaw requested a $2,000 advance on the payment for the tongs. Once he had been advised that the tongs had been returned to Dunbar Well Service, Capshaw made no further contact with Robb.

At the trial, the vice president for Dunbar Well Service testified as to the market value of the tubing tongs and the rod tongs. He placed the value of the former at between $9,500 and $10,000 and the value of the latter at between $6,000 and $6,500.

The statute which Capshaw was convicted of violating provides:

"(a) A person who buys, receives, conceals or disposes of property which he knows, believes or has reasonable cause to believe was obtained in violation of law is guilty of:

"(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is five hundred dollars ($500.00) or more; * * *." Section 6-3-403(a)(i), W.S.1977, Cum.Supp.1985.

Even though the statutory definition does not encompass an element of specific intent, Capshaw urges the proposition that the element of specific intent should be implied in the statute and that the district court erred in refusing to give to the jury his proferred instructions with respect to specific intent.

In State v. Callaway, 72 Wyo. 509, 267 P.2d 970 (1954), and in Russell v. State, Wyo., 583 P.2d 690 (1978), this court said that all of the essential elements of this crime are included in the statute and went on to describe those elements.

"But our statute is not couched merely in generic terms, it fully, directly, expressly and without any uncertainty or ambiguity, sets forth all of the elements which this court has said are necessary to constitute the offense intended to be punished." State v. Callaway, supra, 267 P.2d at 972. 1

" * * * The material elements, each of which were required to be proved beyond a reasonable doubt to support conviction, were and are: (1) the receipt (2) of a thing of value which has been stolen and (3) knowing it to have been stolen." Russell v. State, supra, 583 P.2d at 693. 2

In neither instance did the court suggest that specific intent was one of the elements of this crime. Although the statute has since been amended, there does not appear to be any substantial difference with respect to the essential elements of the crime.

The absence of specific intent as an element of this crime as set forth in Russell v. State, supra, is consistent with the distinction between specific intent and general intent which we have recognized.

" * * * When the statute sets out the offense with only a description of the particular unlawful act, without reference to intent to do a further act or achieve a future consequence, the trial judge asks the jury whether the defendant intended to do the outlawed act. Such intention is general intent. When the statutory definition of the crime refers to an intent to do some further act or attain some additional consequence, the offense is considered to be a specific intent crime and then that question must be asked of the jury." Dorador v. State, Wyo., 573 P.2d 839, 843 (1978).

Page 743

California also recognizes this distinction between general intent and specific intent. See e.g., People v. Hood, 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370 (1969).

The importance of the statutory definition of the crime with respect to whether specific intent is an element has been addressed by the Supreme Court of Colorado. In Armijo v. People, 157 Colo. 217, 402 P.2d 79 (1965), that court said:

" * * * A given crime may consist of an act combined with a general intent or, on the other hand, it may consist of an act combined with a specific intent to commit the act, depending entirely upon the particular statute which defines the offense under consideration. Where the statute defining the crime includes a specific intent as an ingredient of its criminality, such specific intent is essential and must be established with the same certainty as any other material element of the crime." Armijo v. People, supra, 402 P.2d at 80.

The Supreme Court of Connecticut has stated the proposition in this way:

" * * * If the statute does not include intent or...

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