Stoinski v. State
| Decision Date | 25 August 2006 |
| Docket Number | CR-04-2527. |
| Citation | 956 So.2d 1174 |
| Parties | Marc Lee STOINSKI v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Sandra Carlin Guin, Tuscaloosa, for appellant.
Troy King, atty. gen., and Kristi L. Deason Hagood, asst. atty. gen., for appellee.
The appellant, Marc Lee Stoinski, was convicted of two counts of first-degree theft of property, a violation of § 13A-8-3, Ala Code 1975, and one count of receiving stolen property in the first-degree, a violation of § 13A-8-17, Ala.Code 1975.1 He was sentenced to 10 years' imprisonment for each conviction, with the sentences to run consecutively. However, pursuant to the Split Sentence Act, § 15-18-8, Ala. Code 1975, Stoinski's sentence as to one of the first-degree-theft convictions was suspended, and he was ordered to serve six months in the county jail, followed by five years of supervised probation. The court indicated that it would revisit its sentences as to the other first-degree-theft conviction and the receiving-stolen-property conviction at a later time. Stoinski was also ordered to pay $50 to the crime victims compensation fund, restitution, and attorney fees.
The evidence adduced at trial established that Lt. Byron Douglas Wade of the Tuscaloosa County Sheriff's Department participated in an investigation involving numerous thefts of tractors, trailers, trucks, and four-wheeled all-terrain vehicles. A tip from an anonymous source led the investigators to a residence in Cottondale. A person at the residence gave them the name of Michael Kimbrough as a person who was involved in the thefts.
Investigators interviewed Kimbrough, who supplied the name of Larry Spencer as someone who might be involved in the thefts. Investigators interviewed Spencer and obtained information that led to the recovery of a four-wheel-drive Kubota brand tractor in Perry County, along with other equipment, which was returned to the owner. Lt. Wade testified that a stolen box blade was recovered from the property of Roger Miller. In an interview with Kristal Barger, Kimbrough's girlfriend, Lt. Wade was given Stoinski's name as an accomplice in the thefts.
Michael Kimbrough testified for the State pursuant to a plea agreement in which he had pleaded guilty to 7 felony charges and received a sentence of 18 years' imprisonment, no probation, the State agreeing not to oppose his parole. He testified that he and Stoinski stole a Kubota brand tractor from ARC Rental Service in Tuscaloosa County. He stated that he met Stoinski in Stoinski's driveway on the evening of the theft. A short time later, Barger arrived and the three of them drove in Stoinski's truck to ARC Rental Service. Kimbrough testified that Barger was intoxicated from alcohol and methamphetamine at the time, that she had nothing to do with the theft, and that she was just riding with them. Kimbrough testified that Barger did not participate in the thefts and that she received no monetary gain from the sale of the stolen equipment.
Kimbrough testified that he, Barger, and Stoinski arrived at ARC Rental Center around midnight. He and Stoinski then hooked up a Kubota brand tractor to the back of Stoinski's truck and drove the tractor to the property of an individual named Roger Miller in Shelby County. According to Kimbrough, Larry Spencer paid him approximately $2,500 for the tractor the next afternoon. Kimbrough gave Stoinski approximately $750 of that money.
Within a few days, Larry Spencer contacted Kimbrough about stealing another Kubota brand tractor because Roger Miller had wanted one with four-wheel drive rather than the two-wheel drive tractor that they had stolen. Kimbrough drove around until he located such a tractor at a worksite at Townsend Ford, a Ford automobile dealership in Tuscaloosa. Kimbrough wrote down the model number and gave this information to Larry Spencer; Larry Spencer called Kimbrough and confirmed that the tractor Kimbrough had located was the model Roger Miller wanted.
Kimbrough testified that Stoinski came to his apartment around midnight that same night and the two men proceeded to Townsend Ford in Kimbrough's truck to steal the tractor. Stoinski "hot-wired" the tractor, started it, and Kimbrough drove the tractor onto the equipment trailer attached to his truck. Stoinski then held the brake down on the truck to stabilize it while Kimbrough drove the tractor onto the bed of the trailer. The two men then delivered the tractor to Roger Miller's land in Shelby County and left it there.
Kimbrough testified that Larry Spencer paid him $1,500 for the second tractor. He gave $750 of the money to Stoinski. Because Kimbrough was expecting Spencer to pay substantially more money for the second tractor, Kimbrough decided to "repossess" the stolen tractor from Miller's property. Kimbrough and another individual took the second tractor to C & S Fabrication in Moundville and sold it to a man who owned a farm in Perry County.
Barger testified that, on the evening of the first tractor theft, a friend dropped her off at Stoinski's house. Barger talked to Kimbrough and Stoinski for awhile and then rode with them in Stoinski's truck to ARC Rental Center. Although she had taken the antidepressant Xanax that night, she remembered Kimbrough and Stoinski attaching an equipment trailer to the truck to transport a tractor and that they then drove to the community of Greenpond. Barger testified that Kimbrough located a hidden key and unlocked the gate to the property; they unloaded the tractor and then drove back to Tuscaloosa. Barger also testified that she was with Kimbrough when he went to check out the tractor on the work site at Townsend Ford. She stated that, at Kimbrough's apartment, she overheard a conversation between Kimbrough and Stoinski regarding stealing some equipment from Townsend Ford and taking it back to Greenpond. At the conclusion of that conversation, Kimbrough and Stoinski left the apartment.
Barger stated that she gave Stoinski's name to law-enforcement officers as a suspect. She also testified that Larry Spencer was paying Kimbrough for the tractors.
Larry Spencer testified that he was acquainted with Roger Miller. Spencer had provided some four-wheel all-terrain vehicles to Miller in the past. Miller approached Spencer and told him that he was interested in a Kubota brand tractor. Because Spencer knew that Kimbrough was stealing tractors, he offered to introduce Miller to Kimbrough. Spencer stated that he knew Stoinski because they lived near each other, but that he did not know that Stoinski was involved in stealing the tractors. Spencer claimed that he paid Kimbrough between $2,300 and $2,500 for the first tractor, and $2,500 for the second tractor.2
Pursuant to a negotiated plea agreement, Miller testified that he was acquainted with Larry Spencer. Miller had asked Spencer to locate a Kubota brand tractor for him, and Spencer agreed to do so. The first tractor Spencer provided was two-wheel drive and too small for Miller's needs; Miller told Spencer that he wanted a larger, four-wheel drive tractor. Miller testified that both tractors were taken to and left on his property in Shelby County, but that he had instructed Spencer that the two-wheel drive tractor was not the model he wanted. Miller stated that he did not know Stoinski.
Phillip Hudson, owner of Renovations Plus, stated that his tractor was stolen from a job site at Townsend Ford. He described the tractor as a used Kubota brand tractor for which he had paid $15,000. Hudson testified that his insurer paid only $11,000 for his loss claim and that he had had to spend $19,000 to replace the tractor. Rick Price, owner of ARC Rental Center, testified that the following items were stolen from his place of business: a two-wheel drive Kubota brand tractor, a box blade, a post-hole digger, a Bush Hog brand mowing machine, and a 16-foot equipment trailer. Price estimated the value of the trailer was approximately $11,000 to $12,000 and the value of the remaining items was approximately $1,500.
At the close of all of the evidence, the jury returned a verdict finding Stoinski guilty of two counts of first-degree theft of property and two counts of first-degree receiving stolen property. However, the trial court subsequently set aside one of the convictions for first-degree receiving stolen property on the ground that the conviction was based on uncorroborated accomplice testimony.
Count I of the multi-count indictment against Stoinski charged him with receiving stolen property in the first degree in regard to a Kubota brand tractor, a 16-foot trailer, a post-hole digger, a box blade, and a Bush Hog brand mowing machine, all owned by ARC; Count III of the indictment charged Stoinski with theft of property in the first degree in regard to the same property. Both counts were submitted to the jury for its determination. The jury returned a verdict finding Stoinski guilty of both counts.
Stoinski argues that the trial court erred when it allowed both convictions to stand. Stoinski further argues that it was improper for the trial court to submit both charges to the jury.
With regard to the offense of receiving stolen property, § 13A-8-16(a), Ala.Code 1975, provides:
"A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner."
Generally, under Alabama law a person may not be convicted of receiving stolen property and theft of property as to the same property. As the Alabama Supreme Court held in Ex parte Howard, 710 So.2d 460 (Ala.1997):
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