State v. Steffen

• Citation: 647 S.W.2d 146
• Decision Date: 21 December 1982
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Donald STEFFEN, Appellant. 33518.
• Court: Missouri Court of Appeals

Page 146

647 S.W.2d 146

STATE of Missouri, Respondent, v. Donald STEFFEN, Appellant.

No. WD 33518.

Missouri Court of Appeals Western District.

Dec. 21, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Feb. 8, 1983.

Murry A. Marks, Clayton, for appellant.

John Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.

MANFORD, Presiding Judge.

This is a direct appeal from a conviction for two counts of receiving stolen property in violation of § 570.080, RSMo 1978. The judgment is affirmed.

Before setting forth the pertinent facts, the charged errors and disposition of this appeal, it is necessary to outline the pretrial activities which occurred to clarify how this cause reached final disposition by the trial court.

On February 21, 1979, the office of the Attorney General was appointed special prosecuting attorney. (This becomes important as it is a charged error by appellant observed infra). On October 2, 1979, the Grand Jury, impaneled in Shelby County, returned its indictment. Various pretrial motions were filed, including withdrawal of defense counsel and the entry of successor counsel, and defendant's motion for change of venue. Concerning the latter motion, the cause was ordered transferred to Boone County for trial. Following various continuances, the cause was called for trial on July 30, 1981. On the morning of the trial, respondent sought and was granted leave to file an information in lieu of the indictment. Appellant made an oral request for continuance, which was denied. Appellant requested that he be sentenced in regard to another charge and this was completed.

The court then suggested bringing in the jury panel. Appellant was granted a brief recess, at the end of which he announced, through counsel, his desire to change his plea to guilty. The trial court then undertook an examination of appellant for purposes of the guilty plea. After a rather lengthy inquiry, the trial court concluded, "Upon inquiry, Court finds plea of guilty is equivocal and declines to accept same." The trial court then directed the guilty plea be set aside and a plea of not guilty reinstated. At this point, appellant, through his counsel, advised the court he wished to waive trial by jury and desired the case be tried to the court. The court asked, "Is there a factual question that would have to be decided by a jury?" Appellant requested a brief recess to confer with counsel and then through counsel, announced to the court:

"MR. MARKS: Your Honor, at this time, it's the position of the defendant that with regard to whatever evidence the State presents, either by way of witnesses or even by way of summation, that he does not intend to contest the State's evidence, that he is of the opinion that the State's evidence would be sufficient and overwhelming regardless of his belief that he bought the tractors, as he indicated to you, bought these as he stated, so we are willing to submit this matter to you on the basis of ... the state's attorney's presentation or recitation of what he believes his evidence will show. He may present one of the officers of the Federal Bureau of Investigation to give evidence, and then the defendant is going to rest, Your Honor. He has already given you his version of what occurred. He has no other evidence other than that that has any probative value. I think we can make a rather short case out of this." (emphasis added).

After confirmation by appellant upon the record that he wanted to waive trial by jury, the court ordered the case consented to waiver of the jury pursuant to Rule 27.01.

Appellant challenges the sufficiency of the evidence, necessitating a recital of pertinent facts. The record reveals that two John Deere tractors were stolen. The first was a Model 4240, stolen from the University of Illinois Orr Agricultural Research Center at Perry, Illinois, the night of July 15/16, 1979. This tractor also contained a tool box with tools engraved with UIORC and a five-digit number. The serial number of this tractor was 011345. The value of this tractor was fixed at approximately $30,000.

A second John Deere tractor was stolen during the month of July, 1979, from the premises of an implement dealer in Mt. Pleasant, Iowa. This was a John Deere, Model 4440, and bore a serial number of 27054. The value of the second tractor was fixed at approximately $33,729.00.

Under a search warrant, both tractors were recovered from appellant's farm by federal, state, and local law enforcement officers on August 4, 1979. The plates for the serial numbers were missing, but those numbers were stamped into parts of the tractors and identification was completed. The tools and certain parts (i.e., weights) of the tractors were never recovered.

The evidence also included testimony by an employee of a subsequent owner of appellant's farm. ¹ This employee testified that on May 19, 1981, while cleaning one of the farm buildings, he discovered a serial plate bearing the number 27054.

In addition to the foregoing, respondent called one Jerry Newton as a witness. Newton testified that he was a truck driver, and that he, along with one Joe Phipps and Sam Harper, stole some tractors. Newton testified that the stolen tractors were delivered to two people, one of whom he recognized and named as appellant. Newton testified that he and Phipps went to appellant's farm on two or three occasions before the delivery of the tractors. Newton stated that he and Phipps stole the first tractor near Perry, Illinois and that he delivered the tractor late one night or early morning to appellant's farm. Newton then testified that the next morning, he and Phipps took appellant to one of the latter's farm buildings and showed appellant the tractor. A discussion was held between the three of them and according to Newton, appellant said he needed to dispose of the tools and the serial plates. Newton testified that appellant wanted only John Deere tractors and no other brand. Newton stated that the cash price was $10,000. Newton testified that that he saw appellant give money to Phipps. Newton testified that $10,000 was split evenly three ways between him, Phipps and Harper. Newton stated that some three to four weeks later he, Phipps and Harper traveled to Mt. Pleasant, Iowa and stole a second John Deere tractor from the premises of an implement dealer and delivered it to appellant. The price for the second tractor was also $10,000 cash, but Newton disclaimed that full payment was ever made.

On cross-examination, one F.B.I. agent stated that appellant told him that he (appellant) had purchased the two tractors from a Larry Johnson from Sikeston, Missouri for $48,000 cash, most of which was furnished by appellant's son-in-law.

Evidence for the defense consisted of the testimony of appellant's wife, who disclaimed ever seeing or meeting Newton. Newton had testified earlier that on one trip to appellant's farm, he had met appellant's wife. There was offered, by stipulation, the grand jury testimony of one Ron Buswell. That testimony was as follows:

"Q. Do you know if the tractors you saw at Donald Steffen's in early June were the same ones that were there when the FBI seized them?

A. Do I know for a fact?

Q. By Mr. MacFarlane: Yes.

A. It appeared to be the same tractor, and it looked the same. I have never been in a tractor, and I couldn't tell you.

MR. MARKS: This is from page 151:

Q. What type of tractor was it?

A. Well, along about the first part of June, there was a 42-40 they were cultivating with.

Q. What make was it?

A. John Deere.

Q. This tractor wasn't on the farm prior to the ... to the bean planting?

A. You mean the 42-40?

Q. Yes.

A. I ... I didn't see it. It could have been there. The first time I saw it was when they were cultivating with it.

Q. That was in June, late June?

A. No, the first part of June."

Defense evidence concluded with the testimony of appellant, who claimed purchase of the tractors from one Larry Johnson for a cash payment of $48,000. Appellant admitted that he did not receive any receipt or bill of sale for his purchase. He stated he had ordered the tractors in April, 1979. He further stated that he had no knowledge that the tractors were stolen when he made arrangements for their purchase.

The evidence closed. The trial court found appellant guilty on both counts and fixed punishment at five years on each count, to be served concurrently. This appeal followed.

Appellant presents three points, which in summary charged the trial court with error in (1) failing to sustain appellant's motion for judgment of acquittal in that the evidence was insufficient to sustain a finding of guilt beyond reasonable doubt; (2) failing to sustain appellant's pretrial motion and motion for new trial alleging dismissal of the indictment because of the unauthorized and illegal appointment of the Attorney General as special prosecutor; and (3) failing to grant appellant's motion for continuance, thus violating his constitutional rights in that he was not accorded the right to have investigative and depositional services or the services of experts as provided in § 600.150, RSMo 1978.

Under his first point, appellant contends that the evidence was insufficient to sustain a finding of guilty and puts forth six specific arguments. Each is taken up and disposed of individually.

Sub (a): "The state failed to prove that defendant had actual knowledge that the tractors were stolen and no evidence was adduced proving that defendant had been informed that the tractors were stolen."

Before discussing this contention, in light of the evidence relative thereto, it is necessary to clarify a misconception evident in appellant's argument with regard to the elements of § 570.080, RSMo 1978. Appellant cites to this court State v. Reo, 510 S.W.2d 211 (Mo.App.1974); State v. Taylor, 422 S.W.2d 633 ...