Clonce v. State, F-77-842

• Decision Date: 21 December 1978
• Docket Number: No. F-77-842,F-77-842
• Citation: 588 P.2d 584
• Parties: Larry Charles CLONCE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 584

588 P.2d 584

Larry Charles CLONCE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-842.

Court of Criminal Appeals of Oklahoma.

Dec. 21, 1978.

Rehearing Denied Jan. 22, 1979.

An appeal from the District Court, Rogers County; William J. Whistler, judge.

Larry Charles Clonce, appellant, was convicted of the offense of Grand Larceny, After Former Conviction of a Felony; was sentenced to ten (10) years' imprisonment, and appeals. AFFIRMED.

Robert S. Durbin, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Carol Elaine Alexander, Legal Intern, for appellee.

OPINION

CORNISH, Judge:

Appellant, Larry Charles Clonce, hereinafter referred to as defendant, was convicted in a bifurcated trial in the District Court, Rogers County, Case No. CRF-76-137, of the crime of Grand Larceny, After Former Conviction of a Felony. He was sentenced to ten (10) years in the Oklahoma State penitentiary.

The State's first witness, Kenneth Delozier, an agent for a freight delivery company in Claremore, Oklahoma, testified that he received a shipment of Goodyear passenger car tires at about 2:00 a. m. on July 21, 1976. They were placed next to the loading dock outside the building. The tires had "Chrysler Products" written on them in yellow crayon. The witness stated that on his return from breakfast, about 7:00 a. m., he saw a red Dodge pickup with a black vinyl top coming out of the alley with some tires in it. He did not see the person inside the pickup. As he looked down the alley, he saw that some of the tires were missing. At that time, he thought he recognized the pickup as belonging to an employee of Chrysler Products at Claremore, to which company the tires were to be delivered. But then he observed that the pickup left town by a route inconsistent with delivery to Chrysler Products. Thereafter he went to Chrysler Products to determine who owned the pickup, where he discovered that an employee had recently sold such a pickup to the defendant. The witness learned the local address of the defendant, which was in Rogers County, and reported the incident to the Claremore Police between 8:30 and 9:00 a. m. At trial, the witness identified State's Exhibits Nos. 1 and 2 as being Goodyear passenger car tires with similar markings on them as the 15 tires which had been taken from his place of business. The tires were admitted into evidence over the defendant's objections. The witness placed the value of the tires at $20.00 each. He further testified that he had recovered these tires on the morning of July 21, 1976, from or near a pond located on property which the defendant occupied at that time. On cross-examination, the witness testified that he had seen two or three older model Dodge pickup trucks similar to the one he described.

Lieutenant Jerry Prather, of the Claremore Police Department, testified that on the morning of July 21, 1976, acting on the information he received from Delozier, he went to the defendant's property outside of town where he observed a red Dodge pickup with a black vinyl top. He then returned to town to get Officer Walker. About 10:00 a. m. as he and Officer Walker were returning to the defendant's property, the lieutenant learned that another officer had stopped a pickup of similar description. The lieutenant turned back to assist that officer and, upon his arrival at the scene, the witness observed the defendant and one Garren outside the vehicle talking to the officer. The witness did not see any tires in the pickup. Lieutenant Prather further stated that the defendant gave a Tulsa address as his residence, rather than the local address which the Lieutenant had. The defendant and Garren were allowed to leave following this brief questioning. The lieutenant and Officer Walker then drove to the Holland property, adjacent to the defendant's property. They obtained permission to enter onto this property and went to the fence line of the Clonce and Holland property. From this point the witness observed the defendant and Mr. Garren standing near the defendant's house. He also observed Deputy Freeman coming down the road in front of the defendant's property. Earlier that morning, Lieutenant Prather had called Officer Freeman to request that Freeman meet him at the defendant's residence. The witness testified that the defendant and Garren apparently saw the deputy's vehicle coming down the road and started running to the barn. The two men emerged from the barn carrying two tires each, going toward a pond about 70 yards away into which three of the tires were thrown. The lieutenant testified that he saw the yellow crayon markings for Chrysler Products on the tires from where he was standing, about 58 yards away. At this time the lieutenant entered onto the defendant's property and placed the men under arrest. He identified State's Exhibits Nos. 1 and 2 as being two of the tires recovered from the vicinity of the pond. On cross-examination, he stated that at no time that morning did he attempt to get a search warrant. The lieutenant also stated that when the defendant gave him a different address from the local address which the lieutenant already had, the lieutenant assumed the defendant was involved in something.

The defense presented several witnesses who testified that they were visiting the defendant at his residence during the night of July 20, 1976. They testified that they had seen the defendant at his home between the hours of 5:00 a. m. to 9:00 a. m., July 21. The defense witnesses also testified that the defendant habitually left his keys in the pickup and allowed other people to borrow it. Defense Exhibits Nos. 1A and 1B, pictures depicting the defendant's property, were taken by defendant's wife from a point she determined Lieutenant Prather to have been standing the morning of July 21. Defense Exhibit No. 3 was a check for $1,500.00 signed by the defendant to Chrysler Products for the purchase of the pickup truck.

Following the defendant's presentation, the defendant moved for a directed verdict, which was denied. The jury returned a verdict of guilty following the first stage of the trial. The defendant failed to appear at the second stage of the trial wherein the State presented evidence of two prior convictions. The jury returned a verdict of guilty after a former conviction of a felony and set his punishment at ten years.

The defendant's first assignment of error is that the trial court erred in failing to direct a verdict for the defendant and that the evidence presented failed to prove the crime charged. The defendant contends that the State did not prove that he was involved in the actual taking of the tires as a requisite element of the crime of grand larceny. Defendant cites Underhill v. State, 70 Okl.Cr. 39, 104 P.2d 447 (1940), for his assertion that in order to be larceny it is necessary that the accused be involved in the taking of the property. But this Court also said in Underhill that:

"(T)he possession of recently stolen goods is a strong circumstance to be considered in a larceny prosecution; but the possession of stolen property alone, and without any additional testimony, will not sustain a charge of larceny. It may be slight and wholly circumstantial, but there must be some evidence to connect the defendant with the original asportation. . . ." 104 P.2d at 449

See also, Shockey v. State, Okl.Cr., 524 P.2d 33 (1974).

In the instant case, the State did not rely solely upon defendant's possession of recently stolen property to establish larceny. Cf., Mercer v. State, 92 Okl.Cr. 37, 219 P.2d 1035 (1950). The evidence by the State established that a pickup similar to one owned by the defendant was seen leaving the alley with tires in it. The State's evidence showed that the defendant, a few hours after the theft, did not tell the police his correct address. Moreover, that same morning at the defendant's residence not far from Claremore, the defendant was seen trying to conceal the tires by throwing them into a pond. Although the State lacked direct testimony to establish the defendant's presence at the scene of the crime, the evidence presented did tend to circumstantially establish the defendant's involvement in the actual theft.

In Lemmon v. State, Okl.Cr., 538 P.2d 596, 599 (1975), we said:

"(M)ere possession of missing property is not sufficient to convict a defendant of larceny, but when such a fact is supplemented with substantial facts inconsistent with the idea that said defendant obtained the goods in an honest manner, it then becomes a question of fact for the jury to pass upon. . . ." (Citation omitted)

We have also said:

". . . It is the fundamental rule that where there is evidence, although entirely circumstantial, from which the jury may reasonably and logically find the defendant guilty, the weight, credibility, and probative effect of such evidence is for the jury, and the Court of Criminal Appeals will not disturb the verdict for insufficiency of the evidence. . . ." (Citation omitted)

Box v. State, Okl.Cr., 505 P.2d 995, 997 (1973). Therefore, the jury having been properly instructed on the law and having been presented with evidence sufficient to establish the crime of Grand Larceny, we find the defendant's first assignment of error to be without merit.

In his second assignment of error, the defendant asserts that the trial court erred in failing to suppress State's Exhibits Nos. 1 and 2, the tires. The record indicates that the trial court had ruled to suppress eleven tires found in the barn. The defendant contends that the four tires retrieved from the vicinity of the pond were likewise inadmissible as being fruits of an illegal search made without a warrant. The defendant, relying on the case of Blackburn v. State, Okl.Cr., 575 P.2d 638 (1978), argues that these tires could not be admitted into evidence on the basis of the plain view doctrine. In Blackburn, the sheriff entered onto the...