Russell v. State, 4735

Citation583 P.2d 690
Decision Date19 July 1978
Docket NumberNo. 4735,4735
PartiesThomas RUSSELL, Jr., Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
CourtUnited States State Supreme Court of Wyoming

Raymond B. Whitaker, Casper, signed brief and James R. McCarty, Casper, appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Peter J. Mulvaney, Sr. Asst. Atty. Gen., and Helen Murray, Legal Intern, Cheyenne, signed brief and Helen Murray and Gerald Stack appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

Defendant-appellant was convicted by a Natrona County district court jury of receiving stolen property in violation of § 6-135, W.S.1957, 1975 Cum.Supp. (§ 6-7-304, W.S.1977), 1 and sentenced to a period of not less than one nor more than two years in the Wyoming State Penitentiary. From that conviction and sentence, he has prosecuted this appeal raising three issues: (1) Error in denial of defendant's motion for acquittal at the conclusion of the State's case-in-chief; (2) Error in denial of defendant's motion for acquittal at the conclusion of all evidence; (3) Inadequate evidentiary support for the jury's verdict.

We shall affirm.

On February 5, 1976, under surveillance of the Casper police, defendant sold to one Karl Hoskins for $50.00 an expensive stolen automobile intake manifold with carburetors attached. While driving away, defendant Russell was arrested for receiving stolen property.

At trial, it was established that approximately two weeks prior to the incident herein, Karl Hoskins had in the middle of January, 1976, purchased from one Keith Spencer the car from which the manifold involved had been stolen between December 15, 1975, and about January 20, 1976. A mechanic testified that on about December 15, 1975, he had removed the manifold from the engine during repair work on the motor. It was stolen from the rear seat of the vehicle, where it had been placed pending reinstallation. The car was then parked outside the garage. The theft was discovered when the car was later returned to the garage. It was positively identified as coming from the Spencer vehicle. At the time of the sale, Spencer told Hoskins that the manifold, worth about $900.00, had been stolen and that if Hoskins could get it back, he could have it. Subsequently, Charlie Edwards, an acquaintance of defendant's, informed Hoskins that defendant had the manifold from the car and then informed defendant to get in touch with Hoskins. At noon on the day before the sale took place, defendant went to see Hoskins at work and a purchase price of $50.00 was agreed upon. After defendant left, Hoskins notified Casper police of the impending sale and purchase, fearing trouble for receiving "hot" items. In addition to knowing it had been stolen, this suspicion also arose out of the contact by Edwards who told him the defendant had the manifold. (Developed by the defendant as a result of his counsel's cross-examination of Hoskins.) The Casper police then supplied Hoskins with $50.00 in marked money to pay for the manifold and on the evening of the sale, February 5, 1976, placed under surveillance the gas station where the transaction was to occur.

Defendant and his father arrived at the station at approximately 7:00 p. m., defendant going inside to inform Hoskins that he had the manifold in the trunk of his car. Hoskins accompanied defendant outside as the latter told him that the manifold he was purchasing had come off the Spencer car. The sale was completed, Hoskins paid the defendant $50.00, took the manifold inside the station, and defendant and his father drove off. They were subsequently stopped and searched by a police officer, notified by the police officer who had witnessed the transaction, but no money was found. After defendant and his father had been taken to jail, and their car towed away, a Casper police officer, with the aid of a high-intensity lamp, located the marked money in the snow in an area that had been covered by defendant's car prior to its being towed. Indictments were subsequently returned against both defendant and his father.

At trial, defendant testified that he knew the manifold was worth at least a couple hundred dollars, and that he had gotten it from Charlie Edwards in November, 1975, as collateral for a loan, but denied knowing that it was stolen. Charlie Edwards also testified as to the loan arrangement between himself and defendant, and further stated that he had given defendant permission to sell the manifold to Hoskins in order to extinguish his debt. 2 Following the close of all evidence, a defense motion for acquittal of Thomas Russell, Sr. was granted. Defendant was subsequently found guilty by the jury of receiving stolen property with a value in excess of $100.00. Other facts will be mentioned as appropriate during the course of this opinion.

By his first issue raised on appeal, defendant asserts that the district court erred in denying his motion for acquittal made at the conclusion of the State's case-in-chief. 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. Section 6-135, supra; Curran v. State, 1904,12 Wyo. 553, 76 P. 577; Semon v. State, 1902, 158 Ind. 55, 62 N.E. 625. There can be no question but what the defendant received the stolen manifold, because he had it, negotiated its sale and sold it to Hoskins. It would be quite incongruous to have physical possession of a piece of an automobile without it being received from someone or somewhere. The evidence of the State in its case-in-chief established that the property was stolen from Spencer's car, which fact was stipulated to by defendant. While it is argued to the contrary, there was evidence before the jury at the close of the State's case-in-chief, from which it could reasonably be inferred that the defendant had knowledge that the manifold was stolen, hereafter summarized following our discussion of the office and function of a motion for acquittal at the close of the State's case to lay down the accepted standards to be considered by the trial judge where such a motion is made.

This court has considered Rule 30(a), W.R.Cr.P., in a few instances, but not exhaustively in the relation with which we are concerned. Montez v. State, Wyo.1974, 527 P.2d 1330, reh. den.; Heberling v. State, Wyo.1973, 507 P.2d 1, reh. den., cert. den. 414 U.S. 1022, 94 S.Ct. 444, 38 L.Ed.2d 313. Rule 30(a), W.R.Cr.P., 3 provides as follows:

"Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the State is not granted, the defendant may offer evidence without having reserved the right."

Wright, in 2 Federal Practice and Procedure, § 462, p. 245, states that such a motion at the end of the government's case implements " 'the requirement that the prosecution must establish a Prima facie case by its own evidence before the defendant may be put to his defense.' " (Emphasis added.) State v. Allen, N.D.1975, 237 N.W.2d 154, 156; Cephus v. United States, 1963, 117 U.S.App.D.C. 15, 324 F.2d 893, 897.

The standard for the trial judge to use in ruling upon a motion for judgment of acquittal pursuant to the rule has been enunciated in several cases. In United States v. May, C.A.8 1969, 419 F.2d 553, 555, reh. den., citing United States v. McIntyre C.A.8 1972, 467 F.2d 274, 276, cert. den. 410 U.S. 911, 93 S.Ct. 972, 35 L.Ed.2d 274, it was said:

" * * * A reviewing court may only direct a motion for acquittal on the sufficiency of the evidence when (1) it may be said as a matter of law that there exists no evidence of guilt whatsoever upon the record or (2) where there exists no substantial evidence from which reasonable men may say that the defendant is guilty beyond a reasonable doubt. * * * "

In United States v. Bethea, 1971, 143 U.S.App.D.C. 68, 70, 442 F.2d 790, 792, it was declared:

"In this jurisdiction, '(a) motion for acquittal must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonable juror Must have a reasonable doubt as to the existence of any of the essential elements of the crime.' (Citations omitted.) If the evidence is such that a reasonable man may have a reasonable doubt as to the defendant's guilt, the case should go to the jury. (Citations omitted.) On the other hand, the trial judge should not allow the case to go to the jury if the evidence is such as to permit the jury to merely conjecture or to speculate as to defendant's guilt." (Emphasis in original.)

A motion for judgment of acquittal enjoins the trial judge in passing on a motion for acquittal to

" * * * determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter." Curley v. United...

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