Ex parte Walls

• Decision Date: 14 November 1997
• Citation: 711 So.2d 490
• Parties: Ex parte Tony Alan WALLS. (Re Tony Alan Walls v. State). 1960352.
• Court: Alabama Supreme Court

Page 490

711 So.2d 490

Ex parte Tony Alan WALLS (Re Tony Alan Walls v. State).

1960352.

Supreme Court of Alabama.

Nov. 14, 1997.

Rehearing Denied Jan. 23, 1998.

Thomas M. Goggans, Montgomery, for petitioner.

Bill Pryor, atty. gen., and Stephen N. Dodd, asst. atty. gen., for respondent.

On Application for Rehearing

SHORES, Justice.

The opinion of August 8, 1997, is withdrawn and the following is substituted therefor.

Tony Alan Walls was indicted for the crime of receiving stolen property, § 13A-8-16, Ala.Code 1975. At trial, the jury was charged on receiving stolen property in the first, second, and third degrees. Sections 13A-8-17 through -19, Ala.Code 1975. The jury returned a conviction of receiving stolen property in the first degree; Walls was given a five-year suspended sentence, conditioned upon his performing 200 hours of community service and paying a $10,000 fine, court costs, and a $50 victim compensation assessment. The Court of Criminal Appeals reversed his conviction because of an erroneous jury instruction and remanded the case for a new trial. See Walls v. State, 711 So.2d 483 (Ala.Cr.App.1996). In light of this holding, the Court of Criminal Appeals did not address Walls's arguments that the state had not presented sufficient evidence to convict him of receiving stolen property. Walls petitioned this Court for a writ of certiorari, claiming that the evidence was insufficient, and, therefore, that the Court of Criminal Appeals not only should have reversed his conviction, but should have rendered a judgment in this favor. We granted the petition and issued the writ. Because we hold that the evidence was insufficient to convict Walls for the completed offense of receiving stolen property, we reverse the decision of the Court of Criminal Appeals to the extent that it would have permitted the state to retry Walls on that charge. Further, because the jury was not charged on the lesser included offense of attempting to receive stolen property, we conclude that Walls is entitled to a judgment in his favor.

The facts of this case are set out in the opinion of the Court of Criminal Appeals; yet, because this case involves questions of the sufficiency of the evidence, it is appropriate to summarize the facts again here. In the morning hours of October 4, 1994, police officers observed Orville Ladon Haygood on the sales lot of the Gilbert-Baker Ford automobile dealership in Albertville. Haygood was carrying three radios that he had just stolen from cars parked on the lot. Before he was able to make his getaway, Haygood spotted the police and ran into the woods adjacent to the dealership, leaving on the ground the three radios. The police retrieved the radios and apprehended Haygood several hours later. When Richard Baker, the president of the Ford dealership, arrived for work, the police returned the three radios to him.

While questioning Haygood, the Albertville police learned that he had intended to sell the radios to Walls, who operates a retail establishment that sells new and used car parts and accessories. Detective Alan Whitten then spoke with Baker about assisting the police in setting up Walls. Baker agreed to do so, giving the police his permission to use the three radios Haygood had stolen and supplying the police with eight additional radios, which had never been stolen, in order to make a controlled sale to Walls. Before conducting the sale, Albertville police obtained an "anticipatory search warrant" for Walls's business, expecting that he would later be in possession of the radios. The following day, October 5, 1994, Haygood, wired with an electronic monitoring device, entered Walls's place of business and proceeded to sell the 11 radios to Walls for $40 each. Just after Walls closed his store, police executed the anticipatory search warrant and recovered the radios. At trial, Walls was convicted of receiving stolen property.

Walls argues that the evidence was insufficient to sustain his conviction for the offense of receiving stolen property. Relying principally upon Farzley v. State, 231 Ala. 60, 163 So. 394 (1935), Walls specifically contends that the evidence was insufficient to sustain a conviction for receiving stolen property because, he says, there is no basis on which to conclude that any of the 11 radios were "stolen," within the meaning of § 13A-8-16, Ala.Code 1975, at the time he received them. He argues that it is undisputed that eight of the radios had never been stolen, and he contends the other three had lost their "stolen" character when they were recovered by law enforcement officers before the controlled sale. We agree.

Section 13A-8-16, Ala.Code 1975, provides in pertinent part:

"(a) A person commits the crime of receiving stolen property if her intentionally received, 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."

For the purposes of this section, the word "stolen" is defined by statute as "[o]btained by theft, theft by appropriating lost property, robbery or extortion." Section 13A-8-1(12), Ala.Code 1975.

In Farzley, police detectives arranged for two men to "burglarize" a store, in the detectives' presence and with the consent of the store owner. Testimony indicated that the "burglars," under the direction of the detectives, removed from the store various items, which were then delivered to the detectives. In turn, one of the detectives sold these goods to the defendant, who was later convicted of receiving stolen property. The Farzley Court began its analysis by stating:

"[I]t is essential to the crime [of receiving stolen property] that the goods received by [the] defendant were stolen and retained that status until they were delivered to [the] defendant. If they were stolen, they continued to be stolen goods until they were recovered by their owner or someone for him."

231 Ala. at 61, 163 So. at 395, citing Copertino v. United States, 256 F. 519 (3d Cir.1919); People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906); Kirby v. United States, 174 U.S. 47, 63-64, 19 S.Ct. 574, 580, 43 L.Ed. 890 (1899); State v. Alderman, 83 Conn. 597, 78 A. 331 (1910); 53 C.J. 506, § 10. Applying these common-law principles, the Farzley Court concluded that the defendant could not be convicted for receiving stolen goods, because the goods were not "stolen" goods when they were delivered to the defendant. Indeed, the Court held that the goods had never been truly stolen at all:

"The detectives saw [the 'burglars' enter the store], and saw them get the goods and bring them direct to their possession. The goods were at all times under their control and observation, and they had the power to prevent them from being carried out of their presence. One of the officers testified that they got the goods or helped get them with the intention of returning them to the owner. They were in exactly the same status as though the detectives themselves had gone into the store and taken the goods without the intention of depriving the owner of them, but to set a trap to catch [the] defendant. The goods were in the custody of the agents of the detectives in their sight and presence and under their control while the ['burglars'] were carrying the goods to them.

"The detectives were not guilty of larceny or burglary, because they had no criminal intent. There can be no stealing (larceny) unless there is a felonious taking and carrying away; that is, an intent to deprive the owner of the value of his property."

231 Ala. at 61, 163 So. at 395-96.

It is undisputed that eight of the radios supplied to the police by Baker and later purchased by Walls had never been stolen. Therefore, under Farzley, they cannot be the subject of the offense of receiving stolen property. "[I]f as a matter of fact [the goods] had not been stolen, there could be no conviction, no matter how strong the evidence tending to show that a defendant had reasonable grounds for believing they were stolen." Smitherman v. State, 340 So.2d 896, 900 (Ala.Cr.App.1976), interpreting Farzley. In other words, a defendant may possess the requisite guilty mind, but if the property is not actually stolen property, then a circumstance that is unknown to him prevents him from committing the completed act prohibited by statute, i.e., the offense of receiving stolen property.

The state nonetheless urges that we should allow a conviction for receiving stolen property under § 13A-8-16 whenever a defendant has reasonable grounds to believe that property received has been stolen, without respect to whether the property received had been stolen in fact. The state refers us to cases from other jurisdictions in which courts have held that a defendant may be criminally liable for receiving, notwithstanding that the property received was not in fact stolen property. See State v. Bujan, 274 N.J.Super. 132, 643 A.2d 628 (App.Div.1994); State v. Sweeney, 701 S.W.2d 420 (Mo.1985); State v. Pappas, 705 P.2d 1169 (Utah 1985). These cases demonstrate that some states have eliminated from their statutory "receiving" offense the requirement that the property received have been stolen in fact. While our legislature could similarly eliminate this requirement as an element of the completed "receiving" offense in this state, we conclude that to adopt such an interpretation of § 13A-8-16, as that section presently reads, would be directly contrary to the statutory language.

As noted previously, § 13A-8-16(a) states that "[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." (Emphasis added.) Thus, the state would have us read out of the statute the express requirement that the property received, retained, or...