Kinsey v. State

• Decision Date: 17 September 1990
• Docket Number: No. F-86-300,F-86-300
• Parties: Otis KINSEY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 630

798 P.2d 630

Otis KINSEY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-300.

Court of Criminal Appeals of Oklahoma.

Sept. 17, 1990.

As Corrected Sept. 24, 1990.

An Appeal from the District Court of Oklahoma County; James B. Blevins, District Judge.

Otis Kinsey, Appellant, was tried by a jury and convicted of Receiving Stolen Property, 21 O.S.Supp.1984, § 1713 in Oklahoma County District Court, Case No. CRF-85-2126 before the Honorable James B. Blevins, District Judge. The jury set punishment at a $500.00 fine. Judgment and sentence was imposed accordingly. AFFIRMED.

Robert T. Keel, Keel & Kulmacz, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LUMPKIN, Judge:

Appellant Otis Kinsey was tried by a jury and convicted of Receiving Stolen Property, (21 O.S.Supp.1984, § 1713), in Oklahoma County District Court, Case No. CRF-85-2126. The jury set punishment at a $500.00 fine. Judgment and sentence was imposed accordingly.

On the evening of March 4, 1985, David McGraw and Sammy Sykes, both employees of Big Giant Warehouse, a grocery store in Oklahoma City, delivered a large quantity of groceries and two paint pots to Appellant's residence in Oklahoma City, without the knowledge or consent of the store's owner or manager. Upon delivery, Appellant requested that some of the groceries, along with the two paint pots and a spray gun, be delivered to the home of Appellant's nephew in Choctaw, Oklahoma. Sometime later, David McGraw picked up the paint pots from the home of Appellant's nephew, Mark Gregory, and threw them in the river. Subsequently, Appellant paid David McGraw $800.00 cash for the groceries. Sammy Sykes and Jerry Tollison each received $200.00 which represented their split of the monies paid by Appellant to David McGraw. Prior to the evening of March 4, 1989, Appellant was seen talking with David McGraw at Big Giant Warehouse by Jerry Tollison and Sammy Sykes. However, neither Tollison nor Sykes overheard any of their conversation. Both Sammy Sykes and Jerry Tollison admitted to being involved in various thefts from the store, including the theft on March 4, 1985. Appellant, testifying on his own behalf, admitted running into David McGraw, an old friend, at Big Giant Warehouse one day when he was shopping. He testified that McGraw told him that as a store employee he received a 20-25% discount on groceries that he could pass on to Appellant. Subsequently, Appellant placed an $800.00 order with McGraw who offered to deliver the groceries, which were later delivered on March 4, 1985, by Sykes and McGraw. Appellant admitted that he had never purchased groceries in this manner in the past.

In his first assignment of error, Appellant contends that the presumption of his innocence was effectively ignored, thereby depriving him of due process of law. Specifically, he alleges that jury Instruction No. 5 was arbitrary and contained an unconstitutional rebuttable presumption. The complained of Instruction No. 5 reads as follows:

No person may be convicted of receiving stolen property unless the State has proven beyond a reasonable doubt each element of the crime. These elements are: (1) receiving; (2) embezzled personal property; (3) that defendant reasonably should have believed to have been embezzled; (4) with the intent to deprive permanently." (O.R. 11)

This Court has previously ruled a statutory presumption that a person in possession of stolen property knew it to be stolen is arbitrary, creates an unconstitutional presumption, and denies the defendant of due process when a jury is so instructed. Payne v. State, 435 P.2d 424 (Okl.Cr.1967). Payne is quite distinguishable from the instant case. In Payne, a statute-based instruction, then 21 O.S.Supp.1967, § 1713(2); now 21 O.S.Supp.1981, § 1713(2), was struck down for lack of a rational connection between the fact proven, possession, and the fact presumed, that the possessor knowingly possessed stolen property. The instruction in this case complies with the rule of law that the State is not required to prove an accused had actual knowledge that the property was stolen; it is sufficient to prove that an accused had reasonable cause to believe that the property was stolen. Brooks v. State, 714 P.2d 217 (Okl.Cr.1986); Corley v. State, 713 P.2d 12 (Okl.Cr.1985); Gentry v. State, 562 P.2d 1170 (Okl.Cr.1977). Instruction No. 4 clearly advised the jury Appellant was presumed to be innocent and that the State was required to prove guilt beyond a reasonable doubt. Instruction No. 5 merely advised the jury that before reaching a verdict, they had to consider, along with the other elements of the crime, whether or not the defendant should have believed the goods to have been embezzled. We are of the opinion that when Instruction No. 5 is read together with Instruction No. 4 and the other instructions, an unconstitutional presumption is not created. This assignment of error is denied.

In his second assignment of error, Appellant alleges that the trial court erred in failing to instruct on his theory of defense. Appellant argues his requested instruction read as follows:

It is the theory of the Defendant that he neither knew nor had reason to believe the canned goods and other grocery items were stolen at the time he purchased the same, and that he was without criminal intent. (Appellant's Brief Pg. 10)

However, a review of the record reveals that Appellant's requested instructions were not listed in the designation of record or provided for review. Failure to provide a complete record for review waives all but fundamental error, we will now review the record for that purpose.

In support of his argument Appellant relies on Hutton v. State, 494 P.2d 1246 (Okl.Cr.1972), wherein this Court followed Lester v. State, 408 P.2d 563 (Okl.Cr.1965), in holding that a defendant is entitled as a matter of law to have his theory of defense clearly set forth in an instruction to the jury. In Hutton not only did the trial court reject defendant's requested instruction on his theory of defense but the trial court also failed to set forth or define the elements of the offense in the instructions as a whole. It is apparent, after reviewing the decisions of this Court relating to the totality of the instructions, that the reversible error in Hutton was the failure to define the elements of the offense.

This Court has consistently held that a defendant is entitled to an instruction on his theory of defense where there is evidence to support it, even if such evidence is discredited. Broaddrick v. State, 706 P.2d 534, 536 (Okl.Cr.1985). We have also held that it is not error to refuse to give an instruction on the defendant's theory of defense if there is insufficient evidence to support it. Smith v. State, 568 P.2d 639 (Okl.Cr.1977); Coulter v. State, 721 P.2d 818 (Okl.Cr.1986). In addition, after considering the jury instructions as a whole, we determine if the totality of the instructions fairly and accurately state the applicable law. Ashinsky v. State, 780 P.2d 201 (Okl.Cr.1989), relying upon Nunley v. State, 660 P.2d 1052 (Okl.Cr.1983). Here, Instruction No. 5 set forth the elements of the crime, Instruction No. 4 set forth the presumption of innocence, Instruction No. 11 explained how the defendant's testimony was to be judged, and Instruction No. 1 advised the jury to consider the instructions as a whole.

Appellant's requested instruction is basically his testimony that he did not know the items were stolen or embezzled. While a defendant does have the responsibility to come forward with an affirmative defense in some instances, denial of commission of the criminal act is not one of those defenses. In any criminal case the State has the burden of proof as to all elements of the offense, including knowledge and intent. As we held in Payne, this burden cannot be shifted to the defendant in a criminal case. That burden of proof remains with the State. Appellant's testimony in this case was merely evidence for consideration of the jury under Instructions No. 4 and No. 5, respectively. To warrant a separate instruction a defendant's theory of defense must be a legal defense recognized in the law i.e. statutes or case law. This rule is consistent with the holding in Lester v. State, 408 P.2d 563 (Okl.Cr.1965). Legal defenses are matters which go to the legal exoneration of guilt or evidence which may reduce the charge to a lesser included offense. Once presented, it is then the responsibility of the trial judge to determine if the evidence is sufficient to support the instruction. The defendant is then entitled to an instruction on any theory of defense supported by the evidence, as long as that theory is tenable as a matter of law. Lee v. State, 637 P.2d 879 (Okl.Cr.1981); See also United States v. Hall, 536 F.2d 313 (10th Cir.1976) It is well settled that this Court will not interfere with a judgment as long as the instructions, when considered as a whole, fairly and accurately state the applicable law. Coulter v. State, 721 P.2d 818 (Okl.Cr.1986); Langdell v. State, 657 P.2d 162 (Okl.Cr.1982). After considering the instructions as a whole, we find that the failure of the trial court to specifically instruct on Appellant's denial of having knowledge that the items were stolen or embezzled is not error. Hence, this proposition is denied. To the extent this opinion further defines the rule of law relating to the instruction on a defendant's theory of defense, Hutton v. State, 494 P.2d 1246 (Okl.Cr.1972), is modified and distinguished. Further, the Court's decision in Lester v. State, 408 P.2d 563 (Okl.Cr.1965), is modified to include the explanation set forth herein.

Appellant contends in his third proposition that the trial court should not have allowed the State to impeach its own witness based on out-of-court statements when that witness had not contradicted the...