State v. Torregrossa, 45890

• Decision Date: 11 September 1984
• Docket Number: No. 45890,45890
• Citation: 680 S.W.2d 220
• Parties: STATE of Missouri, Respondent, v. August TORREGROSSA, Appellant.
• Court: Missouri Court of Appeals

Page 220

680 S.W.2d 220

STATE of Missouri, Respondent, v. August TORREGROSSA, Appellant.

No. 45890.

Missouri Court of Appeals,

Eastern District,

Division One.

Sept. 11, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Oct. 30, 1984.

Application to Transfer Denied

Dec. 18, 1984.

Norman S. London, C. John Pleban, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Dan Crawford, Jefferson City, for respondent.

ROBERT E. WELBORN, Senior Judge.

By information in lieu of indictment, August Torregrossa was charged on three counts of attempting to receive stolen property. A jury trial resulted in a verdict of guilty on all counts. The court's judgment and sentence imposed a fine of $1,000 on Count I (attempted receiving of stolen property of a value less than $150) and concurrent two years' imprisonment on Count II and three years on Count III (attempted receiving of stolen property of a value of more than $150). The defendant appealed.

In March, 1980, the St. Louis Police Department set up a "Target Fence Unit," involving police officers who pretended to be thieves and attempted to sell property which they represented as having been stolen. About a year prior to the incidents involved in this case, Officer Michael Hampton, assigned to the Target Fence Unit, began hanging around the vicinity of 619 and 623 North Broadway in St. Louis, where appellant August Torregrossa operated a barber shop (623) and his wife a place known as "Jamies Jeans" (619). From time to time he went into the barber shop and talked to Gus to "familiarize myself with him, and him with me." The officer, in plain clothes, talked to Gus about shoes and clothes displayed for sale in the shop, but he made no offers to purchase anything.

On April 17, 1981, around 12:35 p.m., Hampton went to the barber shop. He had a tape recorder in his pocket and also had a radio transmitter which permitted other officers in a police car in the vicinity to overhear Hampton's conversation. He carried a SK-21 Pioneer cassette radio and recorder in a plastic bag. The radio was in the original box. The conversation with Gus began about shoes and Gus asked the officer how much "that radio cost." The officer replied, "Two sixty." Gus then went to wait on other customers and after a few minutes, Hampton called, "Gus, Gus, hey, Gus, Gus." Gus responded, "What?", and Hampton said "How about a bill ($100) for it?" After several minutes while Gus waited on other customers, he asked Hampton to take it out of the sack and then, at Gus's suggestion, they went into the back of the shop. Gus was reluctant to deal, apparently because he already had a similar radio-cassette. After some discussion, Gus said: "What is the cheapest you can go on this babe? Right now cash money--give me a hussle (sic) man, I really don't want it--to tell you the truth." Hampton suggested a $65 price and Gus replied: "You won't take a half a hundred real fast?" Hampton accepted the offer and told Gus: "Hey--I suppose (sic) to get a line on TVs too. Little color TVs." Gus replied: "All right, but I don't want nobody knowin' nothin'." Gus then told Hampton that he'd like to get "those television tapes you make the pictures with." Hampton said: "I don't know if he could get it. He works at this warehouse, you know. * * * He be putting them in this bin for me * * * [I]f he can't get you one of those, I'll get a couple of those color TVs or something. * * * I'll get one of those TVs and be back down here to see you, about next week sometime." Gus replied: "Okay. You know that I don't want to do business with a guy that snitches, man." Gus told Hampton: "You know what I want. I'll pay good money for it, too. The thing that takes pictures from TV." Hampton replied: "[I]f he could rip me one I'll get it, you know, and run down here." Gus got $50 from the cash register and gave it to Hampton.

Hampton returned to Gus's shop on April 20, 1981, with recording equipment as on the prior visit. He told Gus that he had a 10-inch Quasar television, which he had left in the trunk of his auto. Hampton told Gus that he was going to try to get $150 for the television and that dude is going to try to rip me one of those "video things." Gus gave Hampton a blue coat and asked him to cover the TV with it and bring it from the car to the jean shop. Hampton brought the TV into the back room of the jean shop. Gus asked Hampton his cheapest price. Hampton said $125. Gus offered $100 and Hampton accepted it and Gus paid him the money.

On April 23, 1981, Hampton again returned to Gus's shop, again with recording equipment. He told Gus that he had a 19-inch television. After some discussion about the possibility of the apprehension of the person claimed to have stolen the items, Gus paid Hampton $150 for the television set.

Police returned to the barber shop later on April 23, with a search warrant. Gus was arrested on a charge of receiving stolen property. The search pursuant to the warrant uncovered the 19-inch television. Later Gus turned the radio-cassette and the 10-inch television over to the police.

A grand jury indicted Gus, charging three counts of receiving stolen property of a value of at least $150. He was tried on an information substituted for the indictment, charging three counts of attempting to receive stolen property of the value of at least $150. On Count I, involving the radio-casette, the jury found Gus guilty of attempting to receive stolen property of a value less than $150 and recommended that the court impose a fine in lieu of imprisonment. On Counts II and III, involving the television sets, the jury found him guilty of attempting to receive stolen property valued at over $150. The jury assessed a punishment of two years' imprisonment on Count II and three years on Count III.

After a motion for new trial had been overruled, the court entered judgment imposing a fine of $1,000 on Count I and, in accordance with the jury's verdict on Counts II and III, the sentence on Count II of two years to run concurrently with the three-year sentence on Count III.

Appellant contends that there was substantial evidence that Officer Hampton induced appellant into the act which he committed and that the state failed in its burden of showing the absence of entrapment by prima facie proof by substantial evidence that the criminal intent originated not in the mind of the officer, but in the mind of the appellant and that the latter was " * * * ready and willing to engage in such conduct." Section 562.066.2, RSMo. Appellant asserts that, in the absence of such proof, the evidence established entrapment as a matter of law.

The state contends that there was substantial evidence that appellant was predisposed and ready and willing to commit the offense; that Hampton merely provided appellant with the opportunity to realize his intent.

As appellant contends, the evidence did not show any basis for police selection of appellant as a "target" in their "Target Fence" operation.

The respondent relies upon Hampton's testimony and the recorded conversations with appellant, as well as the rebuttal evidence in which, according to the state, appellant spoke of previously dealing in stolen shoes. The state contends that such evidence was prima facie substantial proof that appellant was "ready and willing" (§ 562.066, supra ) to deal in property which he had reason to believe was stolen.

The evidence, viewed favorably to the state, showed that, in the crucial first transaction, the officer took the radio to appellant's barber shop in its original box, concealed in a plastic bag. The appellant opened the conversation about the radio with an inquiry as to its cost. Hampton told appellant that he needed money and was asking about $75 for it. Apparently appellant made no response to this offer and Hampton then asked "a bill" ($100) for it. Appellant displayed an interest by inquiring whether or not the instrument was a "SK 21." Told that it was, he asked the officer to take it out of the box and, at appellant's suggestion, the two went into the back room. Appellant examined the instrument and told the officer that he had one almost like it. After a brief discussion involving the differences between the radio and the one he had, appellant asked: "What is the cheapest you can go on this babe? Right now--cash money--give me a hussle, man, I really don't want it--to tell you the truth. * * * [W]hy should I get him something that he almost (sic) got? His handles are all metal--it's got almost the same damn stock. Jesus Christ."

Hampton: "What about sixty-five?"

Appellant: "You won't take a half a hundred real fast?"

Hampton: "I'll take that."

Appellant: "All right, let's go."

There followed a conversation in which Hampton remarked that he was supposed to get a line on small color TVs. Appellant replied: "All right, but I don't want nobody knowin' nothin'." He told Hampton he'd like to get "[t]hose television tapes you make the pictures with." Hampton said that he didn't know whether his source of supply could get one of those; that he worked at a warehouse and put them in a bin for him; that if he couldn't get what appellant wanted, he'd get a couple of color TVs. "I'll get one of those TVs and be back here to see you, about next week sometime."

Appellant: "Okay, you know that I don't want to do business with a guy that snitches, man."

Appellant then got the $50 from the shop cash register and gave it to Hampton.

This evidence was sufficient to permit the jury to conclude that appellant readily and willingly entered into the transaction and that the officer merely provided an opportunity for appellant to carry out a preexisting intent to deal in stolen goods. There was no undue solicitation by the officer in effecting the transaction. Appellant emphasizes the reduced price at which the radio was sold as evidence that the officer accepted that ridiculously low price in order to induce appellant to make the...