State v. Jonas
| Decision Date | 22 May 1990 |
| Docket Number | No. 880411-CA,880411-CA |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Galen L. JONAS, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Joan Watt, Salt Lake City, argued, for defendant and appellant.
R. Paul Van Dam and Christine F. Soltis, Salt Lake City, argued, for plaintiff and appellee.
Before DAVIDSON, JACKSON and LARSON 1, JJ.
Defendant appeals a jury verdict finding him guilty of three counts of theft: (1) theft by receiving, a third-degree felony, in violation of Utah Code Ann. § 76-6-408 (Supp.1989) and § 76-6-412(1)(b) (1978), on July 17, 1985, and (2) on July 30, 1985, and (3) theft by receiving, a class A misdemeanor, in violation of Utah Code Ann. § 76-6-408 (Supp.1989) and § 76-6-412(1)(c) (1978), on July 25, 1985. We affirm.
Defendant seeks reversal of the convictions or a new trial on five grounds: (1) insufficient evidence; (2) failure to excuse a prospective juror for cause; (3) a bailiff's allegedly improper contact with jurors; (4) failure of the court reporter to provide an accurate transcript of the evidentiary hearing on a motion for mistrial; and (5) denial of a motion to recuse the trial judge. We will review each of defendant's challenges in turn.
The standard of review of a jury verdict challenge based on insufficiency of the evidence is as follows:
[W]e view the evidence presented and all inferences that can be drawn therefrom in the light most favorable to the verdict. Where there is any evidence, including reasonable inferences that can be drawn from it, from which findings of all the elements of the crime can be made beyond a reasonable doubt, our inquiry is complete and we will sustain the verdict.
State v. Gardner, 789 P.2d 273, 285 (1989) (citations omitted). Stated another way, we will reverse a jury conviction for insufficient evidence only when the evidence, viewed in the light most favorable to the jury's verdict, " 'is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted.' " State v. Cobb, 774 P.2d 1123, 1128 (Utah 1989) (quoting State v. Marcum, 750 P.2d 599, 601 (Utah 1988)).
In August 1986, defendant was charged with seven counts of theft by receiving arising out of separate transactions in 1985 and 1986. Four of the transactions occurred in July 1985. There were no transactions between July 30, 1985, and March 4, 1986. The three 1986 transactions took place in March, April, and May.
There was no essential difference in the State's evidence regarding each of the seven transactions. The police conducted a sting operation. On each occasion charged, an undercover police officer sold, and defendant purchased, various merchandise, consisting principally of equipment and appliances that the police had purchased beforehand or that was unclaimed evidence in police custody. 2 In each instance, the officer posed as a thief or fence selling stolen goods for about ten cents on the dollar. He usually wore an audio recorder and some transactions were videorecorded. These recordings were played and submitted to the jury. The police documented the goods sold and the monies defendant paid.
Defendant does not dispute the State's evidence. Instead, he claims that he knew the property he received in July 1985 was not stolen. Thus, he asserts that he did not have the culpable mental state that is a necessary element of the crime charged. Utah Code Ann. § 76-6-408(1) (Supp.1989) provides, with our emphasis:
A person commits theft if he receives, retains, or disposes of the property of another knowing that it has been stolen, or believing that it probably has been stolen, or who conceals, sells, withholds or aids in concealing, selling, or withholding any such property from the owner, knowing the property to be stolen, with a purpose to deprive the owner thereof.
Defendant testified that he recognized as a police officer the undercover agent who sold him the merchandise in July 1985. Defendant also testified that he knew before all of the transactions that the property was not stolen. He claimed that this knowledge was based on information provided to him by two persons, James Lawrence Prater, a confidential police informant, and defendant's acquaintance, Officer Brown. Defendant and his wife testified that Prater told them in July 1985 about the sting operation but said "not to worry about it, that the merchandise was not stolen." Prater had arranged the first meeting between defendant and the undercover officer. Prater was not available at trial to corroborate or rebut the conversation testimony. On the other hand, Officer Brown did testify. Brown stated that in the fall of 1985, after the July transactions, defendant told him that he had been introduced by Prater to a man who had some damaged warehouse property that he would sell cheap to defendant. Defendant told Brown he thought Prater might be an undercover officer or an informant. Defendant's next contact with Brown was on March 29, 1986, when he directed Brown to an anticipated drug transaction which did not materialize. In May or June 1986, defendant spoke to Brown again. He showed Brown some property and asked Brown to check the national computer system, NCIC, to see if it was stolen. Brown remembered seeing an air compressor, saw blades, and a television. Defendant also gave Brown some serial numbers to check out. Brown reported to defendant that those items were not stolen. Brown believed that the checking on NCIC was done before defendant's arrest on August 1, 1986. But police records indicated only one NCIC check by Brown, on August 14, 1986.
Defendant was convicted on the 1985 charges and acquitted on the 1986 charges. The jury could have chosen to disbelieve defendant's story about the 1985 Prater conversation, his recognition of the property seller as a police officer, and his knowledge about the status of the property at the time he received it in July 1985, even if they accepted defendant's and Brown's testimony regarding defendant's knowledge or belief regarding the unstolen status of the property he received in 1986. The jury, not the appellate court, performs the function of determining the credibility of a witness's testimony. State v. Lactod, 761 P.2d 23, 28 (Utah Ct.App.1988). A person may be convicted of theft by receiving even if the property is not in fact stolen property, State v. Pappas, 705 P.2d 1169, 1173 (Utah 1985), if the State proves that the defendant acted under the belief that the property was stolen. Id. at 1172. Unless evidence that supports the jury's verdict is so insubstantial that the jury must necessarily have entertained a reasonable doubt that the defendant committed the crime charged, we are obligated to assume the jury believed the evidence which supports the verdict. State v. Brooks, 631 P.2d 878, 884 (Utah 1981). Nor will we overturn a conviction merely because the jury chose not to believe the defendant. Lactod, 761 P.2d at 27. There is substantial evidence from which the jury could reasonably conclude that defendant, at the time of the July 1985 transactions, believed that the property was stolen, despite his self-serving assertion at trial that he believed otherwise in July 1985. We therefore reject defendant's challenge to the jury's verdict.
After the completion of jury voir dire, defendant challenged one member of the venire for cause. Defense counsel, in an unreported conference at the bench, excepted to the trial court's denial of that request. The next day, defense counsel entered his exception upon the record in the following form:
Defendant's exception was based on the following voir dire colloquy between the trial court and juror Smith:
THE COURT: All right. I almost hate to ask this question, but I'm obligated to. Have any of you been the victims of a theft? And that, as I've indicated to you before what a theft really is, taking property of another with intent to permanently deprive them, or in receiving. Well, we'll take that first. I saw some hands go up in the jury box.
All right. Mrs. Smith? I assume all you women are married unless you tell me otherwise.
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