State v. Ware

• Decision Date: 05 October 1976
• Docket Number: No. 1,CA-CR,1
• Citation: 557 P.2d 1077,27 Ariz.App. 645
• Parties: STATE of Arizona, Appellee, v. Ted Stephen WARE, Appellant. 1592.
• Court: Arizona Court of Appeals

Page 1077

557 P.2d 1077

27 Ariz.App. 645

STATE of Arizona, Appellee, v. Ted Stephen WARE, Appellant.

No. 1 CA-CR 1592.

Court of Appeals of Arizona, Division 1, Department A.

Oct. 5, 1976.

Rehearing Denied Nov. 30, 1976.

Petition for Review Denied Den. 21, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer III, Chief Counsel, Crim. Div., Teresa S. Thayer, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by Michael Tryon and Terry J. Adams, Deputy Public Defenders, Phoenix, for appellant.

OPINION

NELSON, Judge.

After a trial by jury, the appellant was convicted of sale of stolen property valued at $100 or more. The imposition of sentence was suspended for four years and appellant was placed on probation. On appeal, he argues:

(1) A mistrial was improperly ordered by the trial judge and his second trial violated the constitutional prohibition against double jeopardy;

(2) The evidence was insufficient to support a jury finding that the stolen property was valued at $100 or more;

(3) Underscoring by the trial court of certain jury instructions was misleading and denied the appellant due process of law;

(4) A.R.S. § 13--621(A) is unconstitutional because it violates due process of law, equal protection of the law, and constitutes cruel and unusual punishment;

(5) Instructions to the jury on the issue of 'value' were misleading and resulted in a denial of due process of law.

GRANTING OF MISTRIAL

At appellant's first trial, testimony was elicited from a federal officer which tended to implicate the appellant in prior bad acts. Appellant's counsel moved for a mistrial, claiming that the testimony was unresponsive and showed prior police contact and prior bad acts of the defendant. The trial judge denied the motion for a mistrial but indicated to the prosecutor that unless the response was clarified it would be prejudicial. Subsequent to the State's attempt to clarify the prejudicial testimony, the record demonstrates that a conference was held in chambers. After the conference, the trial judge declared a mistrial based on the prejudicial content of the non-responsive answer given by the federal agent. On appeal, the appellant urges that a Sua sponte declaration of a mistrial by the judge was not a manifest necessity and that, therefore, his retrial violated federal constitutional prohibitions against double jeopardy. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971).

We think that appellant has overlooked the obvious fact that the mistrial was granted by the trial judge on the very grounds urged by the appellant. It is clear from the record that the trial judge simply granted the prosecutor the apportunity to dispel the prejudice which had been created by the federal officer's testimony. The real point is that the appellant asked for the mistrial. It is settled that in the absence of prosecutorial or judicial overreaching, a motion for mistrial by a defendant removes any barrier to re-prosecution. See State v. Madrid, 113 Ariz. 290, 552 P.2d 451 (1976); State v. Ramirez,111 Ariz. 504, 533 P.2d 671 (1975); State v. Wright, 112 Ariz. 446, 543 P.2d 434 (1975). We find no intentional misconduct which was motivated by a desire to harass the defendant or cause a mistrial in order that a better case could be subsequently presented by the prosecutor. In the absence of such circumstances, the granting of a mistrial will not bar a subsequent prosecution. See State v. Wright, supra. The appellant, having sought the mistrial, may be retried. State v. Madrid, supra.

SUFFICIENCY OF EVIDENCE

Appellant next contends that the evidence was insufficient to support the jury's verdict of guilty. His argument is two-fold. First, he argues that the evidence was insufficient to prove that the defendant knew or had reason to believe that the weapon sold by him was stolen property. Next, he argues that the evidence was insufficient to prove that the property was worth $100 or more. A.R.S. § 13--621(A) states:

'A person who, for his own gain, or to prevent the owner from again possessing the property, buys, sells, possesses, conceals or receives personal property, knowing or having reason to believe that the property is stolen, is guilty of a misdemeanor, if the value of the property is less than one hundred dollars, and is guilty of a felony if the value of the property is one hundred dollars or more.' (As amended 1974)

We note that there was testimony given by a special agent during the trial which indicated appellant knew that the firearm which he sold to the special agent was stolen. The appellant put on evidence which tended to disprove the allegation that he 'knew or had reason to know' that the weapon he had sold was stolen. Nevertheless, as the State correctly points out, it is the jury that makes the decision when the evidence is in conflict. State v. Flowers, 110 Ariz. 566, 521 P.2d 998 (1974). It is not the function of the appellate courts to re-try conflicts in the evidence. State v. Flowers, supra.

The second basis of appellant's attack on the sufficiency of the evidence dealt with the alleged lack of evidence showing that the weapon sold was valued at $100 or more. Our review of the record indicates that there were no less than four opinions expressed as to the value of the weapon on the date that it was sold to the special agent. Wholesale and retail estimates were given with at least three of the witnesses testifying that the weapon had a retail value in excess of $100 on the date it was sold to the agent. The question of value is one for the jury. State v. Grijalva, 8 Ariz.App. 205, 445 P.2d 88 (1968). There was substantial testimony supporting a jury finding of value in excess of $100. That there was testimony giving an estimate of value below $100 did no more than create a jury question. The question was one for the jury to resolve. State v. Flowers, supra.

UNDERLINING OF INSTRUCTION

Appellant next contends that the underlining of certain words in a jury instruction denied him his right to due process of law. State v. Whitaker, 112 Ariz. 537, 544 P.2d 219 (1975). The State argues that, if error at all, it was harmless. The State also points out that the underscoring in the instruction was perhaps more beneficial to appellant than to the prosecution, since it emphasized the fact that the charge was not evidence against the defendant. The jury instruction complained of in this case, with its underlined portions, read as follows:

'The state has charged the defendant with the crime of SALE OF STOLEN PROPERTY. The Charge is not evidence against the defendant. You must Not think the defendant is guilty just because he has been charged with a crime.

The defendant has pled 'not guilty'. The defendant's plea of 'not guilty' means that the state must prove every part of the charge beyond a reasonable doubt.'

On the issue of underlining, the court in Whitaker stated:

'While the use of underscoring to emphasize crucial language in jury instructions can serve to clarify instructions, we feel that there is danger in the practice and it is not recommended. In the instant case we find no error.' 112 Ariz. 543, 544 P.2d at 225.

Whitaker clearly does not hold that all underlining of instructions requires reversal. To the contrary, while disapproving the practice, it notes that underlining may at times help to clarify instructions. We agree with the State that if anything, the underlining of the instructions was beneficial to the appellant. In addition, there was no objection to the instruction and the failure to object waives any right to raise the issue on appeal. State v. Whitaker, supra; State v. Winter, 109 Ariz. 505, 513 P.2d 934 (1973).

CONSTRUCTION OF A.R.S. § 13--621(A)

Next, the appellant argues that the phrase 'having reason to believe' in A.R.S. § 13--621(A), supra, renders the statute unconstitutional. It is clear in Arizona that before a defendant may be found guilty of receiving or selling stolen property, it must be proven that he dealt with the property while 'knowing or having reason to believe the property was stolen'. State v. Butler, 9 Ariz.App. 162, 450 P.2d 128 (1969); State v. Tellez, 6 Ariz.App. 251, 431 P.2d 691 (1967).

The crucial issue therefore concerns the test to utilize in determining the existence and the requisite caliber of the guilty knowledge to convict the defendant. In other words, must the State prove the defendant Himself had actual knowledge or a belief that the goods were stolen, or is it enough to prove that a reasonable man under similar circumstances of the defendant would have known the goods were stolen.

Some courts take the view that the existence of guilty knowledge may be predicated on the fact that the defendant received the property under such circumstances as would satisfy a man of ordinary intelligence and caution that it was stolen. State v. Abraham, 189 Neb. 728, 205 N.W.2d 342 (1973); Bennett v. State, 211 So.2d 520 (Miss.1968), cert. den. 393 U.S. 320, 89 S.Ct. 555, 21 L.Ed.2d 515; McGlothlin v. State, 1 Md.App. 256, 229 A.2d 428 (1967); People v. Holtzman, 1 Ill.2d 562, 116 N.E.2d 338 (1953); 66 Am.Jur.2d, Receiving Stolen Property, § 9, pp. 301--302; 76 C.J.S. Receiving Stolen Goods, § 8, p. 14; Annot. 147 A.L.R. 1059.

Other courts, however, reject the 'reasonable man' standard and hold that the guilty knowledge or belief of the accused Himself is the only correct avenue of examination. Reser v. State, 27 Ariz. 43, 229 P. 936 (1924); Peterson v. United States, 213 F. 920 (9th Cir. 1914); State v. Redeman, 9 Or.App. 329, 496 P.2d 230 (1972); United States v. Werner, 160 F.2d 438 (2nd Cir. 1947); State v. Mills, 225 S.C. 151, 81 S.E.2d 285 (1954); Lewis v. State, 81 Okl.Cr. 168, 162 P.2d 201 (1945); Camp v. State, 66 Okl.Cr. 20, 89 P.2d 378 (1939); 66 Am.Jur.2d, Receiving Stolen Property, § 9, pp. 301--302; 76 C.J.S. Receiving Stolen Goods § 8, p. 14; Annot. 147 A.L.R. 1059.

In Peterson v....