State v. Potter, 38505

• Decision Date: 07 June 1977
• Docket Number: No. 38505,38505
• Citation: 560 S.W.2d 29
• Parties: STATE of Missouri, Respondent, v. Richard POTTER, Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 29

560 S.W.2d 29

STATE of Missouri, Respondent, v. Richard POTTER, Appellant.

No. 38505.

Missouri Court of Appeals, St. Louis District, Division One.

June 7, 1977 Appellant's Motion for Rehearing or Transfer to Supreme Court Denied Dec. 27 1977.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Ronald R. McKenzie, Pros. Atty., Marion County, Hannibal, for respondent.

William B. Spaun, Hannibal, for appellant.

CLEMENS, Presiding Judge.

A jury found defendant Richard Potter, acting in concert with his brother Ronald, guilty of stealing an outboard motor worth at least $50 (§§ 560.156 and 560.161), and fixed his punishment at four years' imprisonment. Judgment and this appeal followed.

The core issue is whether the state's evidence showed defendant was in the exclusive, unexplained possession of the recently stolen outboard between the time it was stolen on April 28, 1976 and the time defendant and his brother sold it the next morning. We relate the essential evidence.

The outboard motor, worth over $300, had been attached to Roy Hark's boat parked outside his home in Hannibal; on the morning of April 29, 1976 it was missing. Later that morning defendant's brother had the motor in his car trunk and in defendant's presence tried unsuccessfully to sell it to Jack Kolb for $60. Still later, defendant and his brother offered to sell the motor to Fred Brown for $75. Brown offered to pay $50; a bargain was struck and Brown "bought" it for $50. Defendant and and his brother carried the motor into Brown's place of business. In both transactions defendant and his brother, in each other's presence, said they had bought the motor in Michigan "quite sometime ago" for $150.

Within a few days defendant was arrested in Jefferson City and returned to Hannibal where he gave police a written statement, stating: He and his brother had come from Michigan and were doing "spot labor"; at a Hannibal bar, a man unknown to them offered to sell them the outboard motor. Defendant's brother bought the motor for $50 and later they sold the motor to Brown for $50.

Defendant offered no evidence and he challenges the sufficiency of the state's evidence, contending his possession of the stolen motor was neither exclusive nor unexplained, as required to support an inference of stealing.

In their briefs, both parties cite State v. Gonzales, 533 S.W.2d 268(5-6) (Mo.App.1976), holding "the term 'exclusive' used in describing possession under the foregoing provision does not mean that possession must be separate and apart from all others, because joint possession may give rise to the same inference (citing cases). Yet, if the possession relied on to convict the defendant is joint with another, there must, at least, be some other evidence more than mere possession connecting the defendant with the offense." See...