State v. Hunt, 45244

• Decision Date: 05 April 1983
• Docket Number: No. 45244,45244
• Citation: 651 S.W.2d 587
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Carl HUNT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 587

651 S.W.2d 587

STATE of Missouri, Plaintiff-Respondent, v. Carl HUNT, Defendant-Appellant.

No. 45244.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 5, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 13, 1983.

Application to Transfer Denied

June 30, 1983.

Charles H. Billings, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

PUDLOWSKI, Presiding Judge.

The central issue on this appeal is one of first impression: whether the defendant can be convicted of attempting to receive stolen property over $150.00 in value in violation of § 564.011, RSMo 1978, despite the fact that the property in question had never been stolen. We hold that factual impossibility does not preclude a conviction for attempt to receive stolen property under § 564.011, RSMo 1978. We accordingly affirm the decision of the trial court.

The facts are as follows:

On October 29, 1980, members of the St. Louis Metropolitan Police Department purchased various television sets from a wholesale distributing company in St. Louis, Missouri. On November 20, 1980, Police Officer Michael Hampton obtained a 10 inch television from the police department stock property that had been purchased on October 29, 1980. Thereafter, Officer Hampton went to defendant's place of employment wearing a concealed tape recorder. He proceeded to show defendant the television and told him that the set was stolen. After negotiations concerning the price, defendant gave Officer Hampton $70.00 for the set.

On November 26, 1980, Officer Hampton obtained a 19 inch television set from the police department stock property. Again, Officer Hampton took this set to defendant's place of business and informed defendant that he had "ripped it off at this factory" and that the television would cost $125.00. Officer Hampton was paid the $125.00 by defendant's employee, Conrad Levi. Shortly thereafter, on November 26, 1980, a search warrant was executed at defendant's place of employment and the 19 inch television was recovered.

Defendant was originally charged by indictment with four counts of receiving stolen property. Defendant moved to dismiss the indictment on the grounds that the property was not in fact stolen. The state filed substituted informations in lieu of the indictment, charging defendant with two counts of attempting to receive stolen property. Subsequently, the state amended this information charging defendant as a prior and persistent offender. Defendant filed motions to dismiss each of the informations which were overruled. Defendant was found guilty by a jury and appeals.

Section 564.011, RSMo 1978 provides in relevant part:

1. A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

2. It is no defense to a prosecution under this section that the offense attempted was, under the actual attendant circumstances, factually or legally impossible of commission, if such offense could have been committed had the attendant circumstances been as the actor believed them to be.

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Subsection 2 of this enactment reveals legislative intent to eliminate the "legal impossibility" defense. Defendant cites Young v. Superior Court, 253 Cal.App.2d 848, 61 Cal.Rptr. 355 (1967), for the proposition that no prosecution for attempt to receive stolen property could lie when the property was not stolen. However, Young was expressly overruled in People v. Wright, 105 Cal.App.3d 329, 164 Cal.Rptr. 207 (1980).

[A] defendant is guilty of an attempt where he has the specific intent to commit the substantive offense and, under the circumstances he reasonably sees them, does the acts necessary to consummate the substantive offense; however, because of circumstances unknown to him there is an absence of one or more of the essential elements of the substantive crime.

Wright, 164 Cal.Rptr. at 209. Under this rule, defendant cannot be exonerated because facts unknown to him made it impossible to succeed. If the condition of the televisions had been as defendant supposed, the crime would have been completed. "[A] person who with the requisite criminal intent traffics in property represented to him as stolen, is engaging in criminal-type conduct, in no sense innocent in nature, which society should have a right to punish under its criminal law." State v. Rios, 409 So.2d 241, 244 (Fla.Dist.Ct.App.1982). In eliminating impossibility as a defense, Missouri joins the vast majority of states which have rejected such a defense. ¹

An adjunct contention of the defendant is that the title of the § 570.080 RSMo 1978, ("Receiving Stolen Property") is to be considered when construing § 564.011 ("Attempt") because the use of the word "stolen" mandates that the property must be stolen. Defendant claims that we must abide by the rules construing legislative intent. The rule of construction is that significance must be attached to every word in a statute, and every part thereof must be given effect rather than making some words idle and nugatory; that where a statute expressly mentions one limitation it excludes all others. Bauer v. Rutter, 256 S.W.2d 294, 296 (Mo.App.1953). This contention is without merit. These maxims, which are mere auxiliary rules of construction in aid of the fundamental objective of ascertaining the intention of the lawmakers, are not to be permitted to defeat the plainly indicated purpose of the legislature. Springfield City Water Co. v. City of Springfield, 355 Mo. 445, 182 S.W.2d 613, 616 (Mo.App.1944). The express intent of the legislature is patently evident by paragraph (2) of § 564.011 (1978) in that it abolished the impossibility defense. The object of the legislature in cases such as this is that the property need not be stolen. The result is both sensible and fair.

Defendant next contends that the provisions of § 564.011 violate his constitutional rights under the 5th and 14th amendments. Defendant fails to cite authority in support of this proposition. Contrary to defendant's argument is State v. Sommers, 569 P.2d 1110 (Utah 1977). In this decision, the Utah Supreme Court held, "[t]he defense of impossibility is not a fundamental right essential to an Anglo-American regime of ordered liberty. The express abolition of such a defense advances the fundamental principles of liberty and justice which support all of our civil and political institutions." Sommers at 1111. We agree with Sommers.

In his second point defendant alleges trial court error in submitting a non-MAI-CR 2d instruction to the jury that tracks the language of § 564.011 RSMo 1979. Appellant draws our attention to the Notes on Use, MAI-CR 2d, Volume I pg. VIII(e) which reads, "giving or failing to give an instruction on verdict form in violation of this Rule or any applicable Notes on Use shall constitute error, its prejudicial effect to be judicially determined."

The Notes on Use, MAI-CR 2d, Volume I pg. VIII(c) state, "MAI-CR excludes use of other forms. Whenever there is a MAI-CR instruction, or a verdict applicable under the law to the facts, the MAI-CR instruction or verdict form shall be given or used to the exclusion of any other on the same subject." Thus, the issue at bar is whether any MAI-CR 2d instruction was applicable, thus negating the necessity of a modified instruction.

Before submitting the modified instruction, the trial court stated to counsel:

... the court feels that such an instruction is mandated by certain facts and circumstances of this case, and that the...