State v. Sheffey

• Decision Date: 15 October 1975
• Docket Number: No. 57924,57924
• Citation: 234 N.W.2d 92
• Parties: STATE of Iowa, Appellee, v. Kenneth Ray SHEFFEY, Appellant.
• Court: Iowa Supreme Court

Page 92

234 N.W.2d 92

STATE of Iowa, Appellee, v. Kenneth Ray SHEFFEY, Appellant.

No. 57924.

Supreme Court of Iowa.

Oct. 15, 1975.

Bertram B. Metcalf, Davenport, for appellant.

Richard C. Turner, Atty. Gen., Jim P. Robbins, Asst. Atty. Gen., and Edward N. Wehr, County Atty., for appellee.

Heard by MOORE, C.J., and REES, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

Defendant was charged by county attorney's information with receiving stolen property valued at more than twenty dollars in violation of § 712.1, The Code. Following jury trial and conviction, judgment was entered sentencing him to an indeterminate prison term not to exceed five years. Upon defendant's appeal, we affirm.

From the record the jury could have found the following facts.

During the June 22, 1974 weekend forty five coins valued at approximately $2800 were stolen from a Davenport, Iowa, business office. June 24, 1974 at about 9:00 p.m. an unknown man approached defendant Kenneth Ray Sheffey on the sidewalk outside defendant's apartment and asked if he wanted to buy some coins. The man carried the coins in a small brown bag. Defendant bought part of the coins that evening for fifty dollars and arranged to meet the seller the next day in a parking ramp across the street from the Boyd and Boyd coin shop. There defendant purchased the remainder of the coins for one hundred dollars. On the same day he sold most of them for $496 to Gene Boyd, operator of the coin shop, representing they had belonged to his dead grandfather. In response to Boyd's question whether the coins were stolen, defendant stated he could guarantee they were not.

After receiving a police notice describing the coins as stolen, Boyd reported his purchases from defendant.

August 6, 1974, defendant pled not guilty to an initial county attorney's information charging 'concealing' stolen property. At trial on September 9, 1974, before the jury was selected, the county attorney filed application to amend the information by changing the allegation of 'concealing' to 'receiving' stolen property. After determining there would be no resulting change in trial testimony, trial court allowed the amendment over defendant's objection and denied defendant's request for continuance. County attorney then discovered the amended information erroneously stated the offense occurred July 2, 1974 rather than June 25, 1974, and trial court over defendant's objection granted leave to correct the error.

Defendant asserts trial court erred in 1) allowing amendments to the information and denying his request for continuance, 2) overruling his motions for directed verdict, 3) overruling his objections to jury instruction No. 8 defining knowledge under § 712.1, The Code, and 4) overruling his motion for new trial.

I. Amendments to Information.

An information may be amended by order of the court before or during trial to correct errors or omissions in form or substance. Sections 769.12, 773.42, 773.43, The Code. The only statutory limitation is that the amendment must not have the effect of charging the accused with an offense different from that previously charged. Section 773.46, The Code. Since § 712.1 defines one crime which may be committed in three ways, by buying, receiving or aiding in concealing stolen property, State v. Cooper, 223 N.W.2d 177 (Iowa 1974); State v. Houston, 211 N.W.2d 598 (Iowa 1973), the amendment from 'concealing' to 'receiving' was not prohibited by § 773.46.

The question remains, however, whether defendant was prejudiced by allowance of the amendment. He had 'a right to rely upon the acts alleged as constituting the offense with which he (was) charged and rest his defense upon a lack of proof by the State of the acts specified.' State v. Cooper, supra at 180. In Cooper, after defendant's motion for directed verdict at close of all evidence, trial court allowed an amendment from 'receive and possess stolen property' to 'receive or aid in concealing stolen goods or property.' We reversed, but noted if the amendment had been proposed earlier so as not to prejudice defendant, allowance would have been proper.

Defendant only generally alleges he was prejudiced by the amendment. As noted, the minutes of testimony attached to the original information remained unchanged, thus defendant cannot claim surprise. Nor does he allege he would have changed his trial preparation or strategy given earlier knowledge of the amended information. The charges do not call for different defenses; proof required to establish one is essentially the same proof required to establish the other. To establish concealing of stolen property the State need not prove actual hiding or secreting of the goods. It need only show defendant committed acts which rendered more difficult discovery or identification of the property by its owner. State v. Upton, 167 N.W.2d 625, 629 (Iowa 1969).

State v. Crutcher, 174 N.W.2d 449 (Iowa 1970) controls our disposition of this issue. In Crutcher the county attorney was permitted to amend the information after the jury was impaneled from 'did receive certain goods' to 'did buy, receive or aid in concealing certain goods * * *.' We reasoned no different offense was charged because the amendment did nothing more than allege the manner of commission of the offense, and held the amendment was proper and within the court's discretion.

Defendant's argument that trial court erred in allowing a date change in the information is without merit. In State v. Young, 172 N.W.2d 128 (Iowa 1968) we upheld such an amendment at close of all the evidence even though defendant alleged prejudice, stating that the date fixed in an indictment was not material. State v. Young, supra at 129, Citing State v. Hardesty, 261 Iowa 382, 153 N.W.2d 464 (1967); State v. King, 225 N.W.2d 337, 342 (Iowa 1975). See § 773.9, The Code.

The above discussion is dispositive of defendant's allegation trial court erred in denying his motion for continuance. A continuance should be granted only if substantial justice would be more nearly obtained. State v. Johnson, 219 N.W.2d 690, 697 (Iowa 1974). As we find defendant was neither prejudiced nor surprised by the amendment allowed, there was no ground for a continuance. See § 773.47, The Code. Granting or refusing a motion for continuance rests largely in the sound and very broad discretion of the trial court. State v. Youngbear, 229 N.W.2d 728, 734 (Iowa 1975); State v. Cowman, 212 N.W.2d 420, 423 (Iowa 1973). In the case Sub judice trial court did not abuse its discretion either in allowing amendments to the information or denying a continuance.

II. Motions for Directed Verdict.

The principles applicable on review of a ruling on motion for directed verdict are discussed in State v. White, 223 N.W.2d 163 (Iowa 1974) and State v. Dahlstrom, 224 N.W.2d 443 (Iowa 1975). The evidence is viewed in the light most favorable to the State and all reasonable inferences tending to support the charge are accepted. If there is any substantial evidence tending to support the charge the cause should be submitted to the jury. We need consider only that evidence which would support the verdict.

There was ample evidence from which the jury could have concluded defendant violated § 712.1, The Code. Of the four elements necessary to prove a § 712.1 violation, only the element of guilty knowledge was in dispute. While defendant denied he knew or suspected the coins were stolen, he also testified he bought the coins for $150 from an unknown man who approached him on the street at night. This presented a credibility question peculiarly within the province of the trier of fact to resolve. State v. Dahlstrom, supra at 448; State v. Harrington, 178 N.W.2d 314 (Iowa 1970).

In light of these principles and the Iowa rule that the accused's unexplained possession of recently stolen property justifies an inference he illegally received it, State v. Houston, 211 N.W.2d 598, 600 (Iowa 1973) and State v. O'Kelly, 211 N.W.2d 589 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974), the motions for directed verdict were properly overruled.

III. Knowledge Instruction.

Defendant objects to an instruction that the jury need not find defendant had actual knowledge of the larceny, 'but only that the facts and circumstances known to him were sufficient to satisfy him that the property had been so obtained, or to cause him to believe that the said coins had been obtained by larceny.' Defendant argues § 712.1 requires 'knowing the same to have been so obtained,' and this does not mean Believing they have been stolen.

The question is one of legislative intent. On three occasions we have interpreted § 712.1 to require only that facts and circumstances known to defendant were sufficient to satisfy him or cause him to believe the goods were stolen. State v. Friend, 210 Iowa 980, 230 N.W. 425 (1930); State v. Van Treese, 198 Iowa 984, 200 N.W. 570 (1924); State v. Feuerhaken, 96 Iowa 299, 65 N.W. 299 (1895). Later decisions from other jurisdictions are in accord. See 66 Am.Jur.2d, Receiving Stolen Property § 9 (1973); 76 C.J.S., Receiving Stolen Goods § 8c (1952) and citations. A minority view holds it is sufficient to prove defendant's guilty knowledge if the jury finds a Reasonable person would have known the goods were stolen. E.g., State v. Moynahan, 164 Conn. 560, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); Seymour v. State, 246 So.2d 155 (Fla.Ct.App.1971); People v. LaValley, 7 Ill.App.3d 1051, 289 N.E.2d 45 (1972); Brown v. State, 281 So.2d 924 (Miss.1973); State v. Rowe, 57 N.J. 293, 271 A.2d 897 (1970).

The majority of courts, however, impose a subjective test; that is, what was defendant's state of mind? E.g., Cochran v. State, 255 Ind. 374, 265 N.E.2d 19 (1970); State v. Beale, 299 A.2d 921 (Me.1973); State v. Abraham, 189 Neb. 728, 205 N.E.2d 342 (1973); State v. Grant, 17 N.C.App. 15, 193 S.E.2d 308 (1...