Thomas v. State

• Decision Date: 07 October 1980
• Docket Number: 3 Div. 234
• Citation: 389 So.2d 552
• Parties: Theodore THOMAS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 552

389 So.2d 552

Theodore THOMAS v. STATE.

3 Div. 234.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Robert M. Beno and Marcel E. Carroll, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was charged in a two count indictment with grand larceny and buying, receiving, concealing, or aiding in concealing stolen property. A jury found the defendant guilty of the count charging receiving stolen property after declaring that they were unable to reach a unanimous agreement as to Count I which charged larceny. Sentence was five years' imprisonment.

The defendant challenged the sufficiency of the evidence by a motion for directed verdict at the conclusion of the State's evidence and by motion for new trial. A motion to exclude the evidence for insufficiency is tested by the evidence at the time the motion is made and viewed in the light most favorable to the State. Kontos v. State, Ala.Cr.App., 363 So.2d 1025 (1978).

The defendant specifically contends on appeal that the State only proved that he was a possible participant or aider and abettor in the theft itself. Since one cannot be convicted for buying, receiving, or concealing stolen property when the evidence shows that he actually stole the property, Davidson v. State, Ala.Cr.App., 360 So.2d 728, cert. denied, Ala., 360 So.2d 731 (1978), the defendant argues that the jury's verdict was unauthorized and not supported by the evidence. We disagree.

On October 2, 1979, John C. Brown and a passenger, Ed Conti, were driving on Day Street in Montgomery. As they approached the furniture and bedding company of Pelham, Shell and Leckie, Mr. Brown noticed an early 1970's model Oldsmobile station wagon in front of him pull to the side of the street. Three black males jumped out and two of the three ran over to a pickup truck parked several feet away. The other one, whom Brown identified as the defendant, stood by the open rear door of the station wagon. A fourth black male remained in the driver's seat.

Ed Conti recognized the pickup truck as belonging to a customer of his, Wiley Chappell, so Mr. Brown and Mr. Conti pulled off Day Street about fifty yards beyond the station wagon to observe. The two black males by the pickup truck opened the door, snatched two rifles and ran back to the station wagon. Brown stated that the defendant jumped in the station wagon and one of the rifles was either handed to him or placed on the rear floorboard by one of the thieves. One black male jumped in behind the defendant and the other one got in the front seat with the other rifle. The station wagon immediately drove off.

Mr. Brown followed the subjects and flagged down a policeman, Talmage Kelley, at the intersection of Air Base Boulevard and Day Street. Officer Kelley apprehended the subjects as they pulled into a Billups service station two blocks from the scene of the theft. Only minutes had elapsed since the crime had been committed. The rifles were recovered from the front and rear floorboards of the station wagon.

Wiley Chappell identified one of the rifles as belonging to him. The other rifle belonged to a friend of his and was left in his custody. He testified he gave no one permission to take the rifles.

In the State's case in chief, John Brown was the only witness who observed the actual theft. When asked if it were possible that the defendant did not have anything to do with the theft, he replied, "In my opinion, it would be probable." He candidly admitted, "It would be impossible for me to state anything other than he (defendant) was present." Mr. Brown stated that the defendant was "just standing, watching the proceedings."

"Okay. I believe there were three black males that were actively involved: one, the driver of the automobile because he had to stop and probably had been aware of the intent of the other gentlemen and, then, the other two that actively opened the automobile and removed the firearms."

"Yes, sir, because based on the way he behaved, he was a victim, you know, of an act just being there. He didn't actively engage in the crime in my opinion."

On direct examination, Mr. Brown testified that one of the rifles was handed to the defendant who was sitting in the back seat of the station wagon. However, on cross examination Brown admitted that he never actually saw the defendant touch the rifle and the weapon could have been placed on the floorboard instead. On redirect examination Mr. Brown testified that it appeared to him that the weapon was handed to the defendant: "He just asked me for my opinion and just logic, you know, the way it was handed in basically. I just know what I know of a '72 Olds, primarily a big back seat."

The following elements must be proven in order to submit to a jury a case of buying, receiving, or concealing stolen property: "(1) The property must have been stolen; (2) the accused must have bought, received, concealed, or aided in concealing the property with the knowledge that it was stolen; and (3) the accused must have had no intention of returning the property to the owner." Ladd v. State, 363 So.2d 1017 (Ala.Cr.App.1978).

Where the evidence establishes that the accused was present, actually aiding, abetting, and participating in the theft of property, he could not be convicted of the offense of buying, receiving, or concealing stolen property. White v. State, 383 So.2d 888 (Ala.Cr.App.), cert. denied, 383 So.2d 892 (Ala.1980); Davidson v. State, 360 So.2d 728 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978). However, criminal liability for receiving or concealing stolen property may attach where one was present but did not participate in the actual taking and carrying away of the property. A statute making an accessory a principal does not alter this rule. White, supra; Mefford v. State, 363 So.2d 1050, 1054 (Ala.Cr.App.1978).

"An apparent exception to the rule that one who steals property cannot be convicted of receiving it, ... is that one who was an accessary before or after the fact but was not present at the actual caption and asportation of the goods or took no part therein, but who received the goods after the...