State v. Murphy, 16412

• Decision Date: 09 September 1980
• Docket Number: No. 16412,16412
• Citation: 617 P.2d 399
• Parties: STATE of Utah, Plaintiff and Respondent, v. Keith Wilburt MURPHY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 399

617 P.2d 399

STATE of Utah, Plaintiff and Respondent, v. Keith Wilburt MURPHY, Defendant and Appellant.

No. 16412.

Supreme Court of Utah.

Sept. 9, 1980.

Ronald Brent Boutwell, Hurricane, for defendant and appellant.

Robert B. Hansen, Atty. Gen., William W. Barrett, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

MAUGHAN, Justice:

The defendant appeals his conviction for possession of a stolen vehicle in violation of 76-6-408. We reverse. All statutory references are to Utah Code Annotated, 1953, as amended.

The defendant was arrested on the morning of November 11, 1978, after being found asleep in the back of a brown Dodge van. At the time of the arrest the van was parked in plain view at 400 North 800 West, Cedar City, Utah. When questioned about his possession of the van the defendant answered that an individual named "Mike" allowed him to sleep in the van, but gave no explanation of who Mike was or how he could be contacted.

At the trial the prosecution introduced the testimony of the defendant's girlfriend, Lori Pledger, hereinafter Pledger, concerning the defendant's possession of the van. Pledger testified the defendant first took possession of the van prior to the time of arrest. She recounted that while walking to an apartment rented by friends of the defendant she and the defendant passed the van which was parked in a community park. Upon finding the friends not at home the couple walked to Hughes Cafe for coffee. Returning to the apartment they found the defendant's friends at home and remained there for approximately two hours.

When the couple left the apartment, they walked to the van, entered it and used it to drive initially to the home of the defendant's brother and then to the apartment where Pledger was living with her uncle. This apartment was located at 390 North 800 West, Cedar City, Utah. The witness further testified she did not see the defendant again that night but saw him the next day at school without the van. She also testified she saw the van parked behind the apartment building the morning after they used it and saw the defendant being arrested the next day at the same location.

In the information and complaint the prosecution alleged the van in question belonged to the U & S Motor Company. The evidence adduced at trial, however, established Robert and Raina Robertson were the registered owners of the van. ¹ The current Utah certificate of title and passenger registration for the van provided the address of the owners as 800 West 400 North, P 56, Cedar City, Utah. The evidence presented at the trial explained the owners lived at a trailer park located behind the apartment building in which Pledger lived. The parking lot in which the van was found separated the trailer park and the apartment building.

Following the presentation of the prosecution's case the defendant moved to dismiss the charges against him on the ground the State had failed to establish a prima facie case. The trial court denied the motion and submitted the case to the jury which returned a guilty verdict.

On appeal the defendant claims the trial court erred in denying his motion to dismiss the charges against him, on the ground the State failed to establish a prima facie case. Although the issue is not argued effectively upon appeal, and the defendant's brief emphasizes irrelevant issues concerning the ownership of the vehicle in question, the critical error was recognized and objected to at a trial; and serious injustice would result if this Court refused to correct the error. ²

The prosecution's failure to correctly identify the elements of the crime of receiving stolen property under 76-6-408 is more reprehensible than the manner in which the defendant presented his case. The State's representation that the elements of the crime are merely two-fold, i. e., (1) receiving or disposing of the property, and (2) knowledge the property was stolen, evidences a fundamental misunderstanding of the statute and the very essence of the culpable activity. This general misunderstanding of the nature and scope of the crime must be remedied by this Court.

The defendant was found guilty of violating 76-6-408, i. e., receiving stolen property. This statute provides in pertinent part:

"(1) 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, ... with a purpose to deprive the owner thereof."

Implicit in the language of the statute are the basic elements of the crime: (1) property belonging to another has been stolen; ³ (2) the defendant received, retained or disposed of the stolen property; (3) at the time of receiving, retaining or disposing of the property the defendant knew or believed the property was stolen; and (4) the defendant acted purposely to deprive the owner of the possession of the property. ⁴

Before the defendant can be convicted of the crime of receiving stolen property the prosecution must present a quantum of evidence sufficient to establish each element of the crime. ⁵ In the present case, the prosecution contends they introduced sufficient evidence to establish a prima facie case for consideration by the jury. We cannot agree with this conclusion.

Specifically, the prosecution argues they presented a sufficient quantum of evidence from which the jury could conclude beyond a reasonable doubt; (1) the defendant received or retained the property of another; and (2) the defendant knew or believed the property probably to be stolen. However, their argument overlooks two essential elements of the crime, i. e., the fact the property was stolen and the defendant's intent at the time of the possession. ⁶

Before an individual can be convicted of violating 76-6-408 the prosecution must establish the defendant's acts of receiving, retaining or disposing of the property in question were accompanied by a purpose to deprive the owner thereof.

The legislature has specifically defined the term "purpose to deprive" in 76-6-401:

"(3) 'Purpose to deprive' means to have the conscious object:

(a) To withhold property permanently or for so extended a period or to use under such circumstances that a substantial portion of its economic value, or of the use and benefit thereof, would be lost; or

(b) To restore the property only upon payment of a reward or other compensation; or

(c) To dispose of the property under circumstances that make it unlikely that the owner will recover it."

We recognize proof of a defendant's intent is rarely susceptible of direct proof and therefore the prosecution usually must rely on a combination of direct and circumstantial evidence to establish this element. ⁷ However criminal convictions may not be based upon conjectures or probabilities and before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the jury may base its conclusion of guilt beyond a reasonable doubt. ⁸

In the present case, the prosecution has failed to introduce any evidence either circumstantial ⁹ or direct to establish and prove an unlawful purpose at the time of the defendant's possession of the vehicle. ¹⁰ Under the evidence presented at trial, the defendant drove the vehicle for one evening and then parked it at the address of the registered owners. ¹¹ He did nothing to alter its appearance, impair its future usefulness to the owners or reduce its subsequent economic value. The defendant requested no reward or other compensation for its return and did not dispose of it under circumstances that would make it unlikely the owners would recover it.

The prosecution's failure to establish this requisite element of the crime renders the trial court's denial of the defendant's motion erroneous and mandates our overruling it. The evidence presented at trial was insufficient to support a conviction of the crime as charged and the defendant should be declared not guilty as a matter of law.

WILKINS, Justice (Concurring with comments).

I concur that this case should be remanded to the District Court for entry of judgment of not guilty for the reason that the State has failed to present any evidence that the defendant knew "... that it (the van) has been stolen, or believing that it probably has been stolen ...," Section 76-6-408(1), Utah Code Annotated, 1953, as amended.

The stipulation made by the prosecution and defense counsel that the van had been "missing" for three days does not, in my view, rise at all to an evidentiary level in this case from which reasonable men and women of the jury could conclude guilt beyond a reasonable doubt on this essential element of the crime charged here.

STEWART, Justice (Concurring with Justice WILKINS and in result with Justice MAUGHAN.)

The defendant in this case contends in his brief there was "no evidence during the state's case in chief (that) was ever introduced to show that the alleged stolen van was ever in fact stolen. No one testified that the van was stolen or that the appellant believed the van to be stolen." Having squarely raised the issue, it is incumbent on this Court to determine whether the above allegation comports with the record. The jury did not find, as pointed out in Mr. Justice Maughan's opinion, that there was an intent to deprive the owner of this property, because no specific instruction requiring such a finding was given. In addition, the only evidence purporting to bear on that element of the crime is that referred to in Mr. Justice Wilkins' opinion. I am compelled to agree that there was a complete absence of probative evidence on a crucial element of the crime and that the defendant properly raised the matter before the trial court and this Court.

Accordingly, it is our duty under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), to...