State v. Williams, WD

• Decision Date: 20 April 1982
• Docket Number: No. WD,WD
• Citation: 635 S.W.2d 55
• Parties: STATE of Missouri, Respondent, v. Harvey WILLIAMS, Appellant. 32652.
• Court: Missouri Court of Appeals

Page 55

635 S.W.2d 55

STATE of Missouri, Respondent, v. Harvey WILLIAMS, Appellant.

No. WD 32652.

Missouri Court of Appeals, Western District.

April 20, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied June

1, 1982.

James D. Worthington, Aull, Sherman & Worthington, Lexington, for appellant.

John Ashcroft, Atty. Gen., Priscilla Gunn, Asst. Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before SHANGLER, P. J., and PRITCHARD and DIXON, JJ.

SHANGLER, Presiding Judge.

The defendant was convicted of receiving stolen property of the value of $150 or more, a Class C felony (§ 570.080), and was sentenced to a term of three years and six months. The appeal contends the evidence did not prove the substantive offense and that the judgment was otherwise erroneous.

In the month of July of 1979, three typewriters were stolen from the Higginsville High School, among them two electric machines, an IBM and an Adler. Each was marked with a distinctive serial number and with the Lafayette C-1 School District label. In the month of August of 1980, Missouri Highway Patrol Officer Viessman on undercover duty, was approached by one Haynes at a private residence in Higginsville about the purchase of typewriters. Viessman expressed interest. The officer in the company of another covert agent drove Haynes to another location in that city and picked up one Tony Williams. They drove to a trailer home at still another location, but the door was locked and no one was there. Then they drove to another location still and picked up the defendant Harvey Williams and returned to the trailer. The defendant Williams entered the trailer (whether by key or simply allowed entrance was not shown) and the rest followed. Inside, a female stood by the kitchen sink; they passed her and proceeded to a bedroom. There the defendant Williams removed a blanket from over two typewriters. Viessman examined the machines and Tony Williams said he wanted $150 for them, $75 each. Viessman offered $125, paid over the amount to Tony, and the transaction was concluded. The defendant Williams and Tony Williams each carried a typewriter from the interior bedroom to the Viessman vehicle, and the agents left with the property. In the entire course of the transaction, there was no conversation between Viessman and the defendant Williams.

There was testimony from High School administrative assistant Davis that the two typewriters purchased by Viessman were among those stolen from the school in July of 1979. The serial numbers and descriptions of the machines were recorded in the regular inventory kept by the schools. The witness testified that the value of one of the machines was $385 and that of the other was $375. Those values were derived from the inventory record, Exhibit 1. That evidence was withdrawn from the jury, however, for want by the prosecution to disclose that record to the defense upon request for discovery. The undercover agent Viessman then attributed a $325 and $375 value to the respective typewriters. Those opinions were derived from a personal purchase two years before of an Olivette electric machine for $300, a typewriter "less valuable and less complex" than the stolen machines, and a comparison of the Olivette cost with the store prices of the other brands.

The defendant Williams contends that the prosecution failed to prove the elements of the offense so that he was entitled to a direction of acquittal. The substantive offense is defined in § 570.080:

"A person commits the crime of receiving stolen property if for the purpose of depriving the owner of a lawful interest therein, he receives, retains or disposes of property of another knowing that it has been stolen." (emphasis added)

Thus, a person who disposes of the property of another for the purpose to deprive the owner of a lawful interest therein and who believes the property has been stolen, commits the crime of receiving stolen property. See The New Missouri Code, Manual for Court Related Personnel § 15.6 (1978). (The statute then assigns the crime as a Class C felony where the property involved is $150 or more, otherwise as a Class A misdemeanor.) The defendant is quite wrong to argue that the prosecution was required to prove that he knew the property was stolen to sustain conviction under § 570.080. The cases the defendant cites for that proposition (State v. Montgomery, 591 S.W.2d 412 (Mo.App.1979) and State v. Hayes, 597 S.W.2d 242 (Mo.App.1980) ) were decided under predecessory § 560.270 which imposed the proof of that singular state of mind as a component of the offense. The successor code § 570.080 (on which conviction rests) allows the prosecution to make a case by evidence that the defendant knows or believes the property he disposes of (or retains, or receives) was stolen. See The New Missouri Code, Manual for Court Related Personnel § 15.6, Comments (1978). The new code relieves the rigor of a proof which confines criminal fault to an act done with guilty knowledge by a less rigorous, but equally valid, mental disposition for culpability-guilty belief.

The defendant is also quite wrong to argue that there must be proof that the accused received stolen property from another in order to sustain conviction. The defendant once again reverts to the criminal law since displaced by the code. See State v. Delay, 455 S.W.2d 1, 3 (Mo.1970). The new § 570.080, as did old § 560.270, continues to impose criminal fault against one who receives stolen property-and, in such case, the evidence must prove a transfer from another to the receiver who then knows (or believes) the property was stolen. The new § 570.080, however, also imposes criminal fault against one who retains or disposes the property with knowledge or belief it was stolen. "The words 'retains' and 'disposes' can denote single-party transactions which the words in § 560.270 (now repealed) do not." State v. Davis, 607 S.W.2d 149, 153(6) (Mo.banc 1980). The defendant was accused and convicted of just such a single-party transaction.

The question remains whether the accusation was proven. The elements of the formal charge and of the submission were: that the defendant disposed of two described electric typewriters-of the value of $150 or more-which he knew or believed were stolen with the purpose to deprive the owner of its lawful interest in the property. The defendant asserts, but only casually-without developed argument or attempt at rationale-that "(t)here was no evidence of any disposal-whatever that is." The offense was submitted on the MAI-CR2d 24.10 model prescribed by rule. The term disposed of the instruction employs was not defined, and the defendant complains the submission was made vague by that lapse. The Notes on Use to MAI-CR2d 24.10 (conformable to chapter definitions § 570.010 and MAI-CR2d 33.01) delineate the terms subject to definition in an instruction for receiving stolen property. Disposed of-or variant-is not among them. It is the sense of MAI-CR2d that disposed of needs no definition as to offenses under chapter 570 and will yield a common usage to jurors of normal intelligence. The defendant suggests (again without systematic argument or rationale), however, that the evidence does not prove possession of the property-presumably, as a necessary antecedent to disposal of the property. The new § 570.080 does not make possession, explicit or implicit, an element of the offense where the accusation charges and the instruction submits the defendant disposed of (as contradistinct from received or retained ) property he knew or believed was stolen. The old § 560.270, which required proof of possession to convict for receiving stolen property, was satisfied by evidence that the defendant had the power and intent to control the stolen...