*1
assuming that creation
majority
the ONHA. Even
opinion,
In
concedes
its
implicit in
of action is
legislature
private
of a
cause
that the “intent of the
to waive
Clark, I never-
per
section 198.070.10 as
immunity
express
must be
rath-
sovereign
legisla-
Alas,
how the
then
theless cannot understand
implied.”
majority
er
than
expressly intend-
express legislative
an
intent
ture can be said to have
concludes that
ONHA,
immunity to cause
though,
sovereign
can
in the
ed to waive
be found
even
concedes,
expressly
action
it did not
create.
majority
plaintiffs
further
of
light,
favorable
ma-
cause of
was it- Even
most
underlying private
action
sovereign
waiver of
im-
jority’s
rather
new-found
implicitly,
explicit-
self
than
created
product
than the
of
munity
nothing more
ly.
begs
following
a conclusion
Such
Further,
an inference on an inference.
question:
legislature express-
How can the
the extent that Clark n
recognition
immunity
ly
sovereign
private
waive
to a
public
was based on
legislature
private
cause of action
cause of action
did
statutory
place?
policy
interpretation,
rather than
expressly create
the first
an
majority’s
finding of
ex-
ultimate
appeals
by
cases relied on
The court
sovereign immunity
waiver
even
press
an
majority
provide
do not
answer
more troubling.
readily distinguish-
this
and are
question
reasons,
In
Kee-
able from the instant case.
both
I would af-
foregoing
For the
ney
Highway & Transporta-
judgment
v. Missouri
trial court.
firm the
of the
Commission,
(Mo.App.
tion
2002), v. Board Regents, and H.S. (Mo.App.1998),
S.W.2d 665 the Missouri (MHRA) Rights Act
Human was held sovereign immunity
include a waiver of
tort under the How- brought suits MHRA.
ever, in contrast to the majority opinion, the Keeney and H.S. courts found the exis- Missouri, Respondent, STATE of only after recogniz- tence of a waiver first ing expressly MHRA created a private Keeney, cause of action. LANGDON, Appellant. Michael C. 213.111); (citing S.W.3d at 599-600 section No. SC 85086. (same).
H.S., Likewise, at 673 967 S.W.2d by Sprint cited the majority, tax cases Missouri, Supreme Court Reve- Communications Co. Director Banc. En (Mo. nue, 2002), banc July Revenue, Matteson v. Director 1995), S.W.2d 356 distin- im- guishable under the because statutes cases, here,
plicated in those unlike created
legislature expressly procedure could seek redress which individuals
from the State. view, my express an intent on sovereign
part legislature to waive brought by nursing suits
immunity tort gleaned cannot be from employees
home *3 Ekiss, Louis, Appel-
William J. St. lant. Nixon, Gen., (Jay) Atty.
Jeremiah W. Buchheim, Gen., Atty. Evan J. Asst. Respondent. STITH, Judge.
LAURA DENYIR convicted of Langdon Michael C. felony prop- receiving the class C it, in erty by retaining violation of section 570.080,1 sentenced to 9 months and was $1,000.2 ap- jail and fined its peals, arguing the state failed to meet proving beyond burden of reasonable knowing doubt that he retained it to be an essential believing crime of which he was element of the in- Because the evidence was convicted. sufficient to to find that Mr. re- reasonable doubt this Court re- property, tained stolen verses. in effect at statutory 2. Under section 570.080 as was All references to RSMo crime, receiving proper- the time of the unless otherwise indicated. ty felony property in- a class C if the $150 or more. volved had value
I. FACTUAL closets, BACKGROUND The master bedroom had two containing clothing women’s and the Fearing savings he would lose his in a closet, clothing. other men’s In the latter computer glitch, Y2K Dunnerman Kevin police guns, including found several nu- $4,500 approximately withdrew from his rifles, shotguns, pistols merous stored placed bank in He December 1999. case, plastic in a as well as a cardboard money, along handguns, with three in a types box filled with different of ammuni- kept locked briefcase that he his bed- They tion. later determined that Mr. handguns room. was a 9-mm One Langdon did not have St. Charles Coun- Wesson, for which Mr. Dunner- Smith *4 permit any guns for of these and that ty man permit. had a Mr. Dunnerman did guns stolen. none of these were guns. not have a permit for the other two On Christmas Eve Mr. Dunnerman police The also searched a nine-drawer missing discovered his briefcase was dresser located the master bedroom. contacted the authorities. drawers, they In one of the discovered Mr. police Mr. the Dunnerman told he Dunnerman’s 9-mm Smith and Wesson only had discussed the withdrawal with partially by clothing, along covered savings person prior with the bur- containers of ammunition. Mr. several Coleman, glary, Peyton Robert a co-work- Langdon did not have a St. Charles Coun- er. Mr. given Because Coleman had once ty permit gun; 20-year-old, for the as a work, Mr. Dunnerman a ride to he was young Nathan was too to have a for also familiar with where Mr. Dunnerman a police lived. The contacted Mr. Coleman dispute There no that the found is days talking few Mr. Dunner- after with in the dresser drawer is fact one of the man burglary, any about the but he denied Dunner- guns that was stolen from Mr. wrongdoing. the has man. The issue is whether apparently For reasons unrelated to the Mr. Langdon shown that home, burglary of Mr. Dunnerman’s knowing believing and did so it was police obtained warrant to search Na- stolen and with an intent deprive Speaks’ than home on March 2000. owner of it. The record shows that Na- stepfather, Nathan lived in the home of his friend, Coleman, Mr. admitted to than’s Langdon, along defendant Michael with police April about a month after teenage daughter. Langdon’s Mr. wife home, Langdon the search of the that he search, conducting police While came passed on information about Dun- had Mr. upon one of Mr. Dunnerman’s stolen hand- Nathan money nerman’s withdrawal of guns Langdon garage. burglary and that a week after the Nathan the three police The also searched bed- $2,000 him of the gave spoils. as his share Langdon rooms in the home. No wit- pleaded guilty Mr. Coleman later to receiv- certainty at trial with as to nesses testified $2,000 ing based on that bedroom, although who lived which Nathan, jail received a sen- payment from that, witness indicated from the dé- police tence, pay Mr. Dun- and was ordered cor, police surmised that the downstairs $2,000 nerman as restitution. belonged young bedroom to a man such as Nathan, impli- Mr. confession upstairs containing an bedroom While Coleman’s burglary, police Nathan in the belonged Langdon’s twin bed to Mr. teen- cated burglary, not arrest Nathan for the age daughter, and the master bedroom did although the does indicate belonged Langdon. to Mr. and Mrs. record at the Langdon acquittal whether this because the evidence of his Mr. moved evidence, arguing close the state’s participation equivocal, or for oth- some the above evidence was insufficient implicate er Mr. did not reason. Coleman knowingly show that he retained Mr. latter Langdon or indicate that court overruled the motion. gun. The had Mr. any knowledge burglary. Mr. to rest on his motion Langdon chose give did not statement either any acquittal and no evidence. presented admitting denying the room was receiving him of convicted his, his, or that he knew Langdon appealed. Mr. Fol- about the existence of believed lowing opinion the Missouri Court Nonetheless, police that it was stolen. District, Appeals, Eastern this Court him charged arrested Const, V, granted transfer. Mo. art. sec. “retaining” 9-mm Smith dresser, Wesson found in the although
police charge retaining did not him with II. STANDARD OF REVIEW weapon garage. From *5 to reviewing challenge a the facts, it appears these that his was arrest evidence, the sufficiency of this Court de the the police weapon based on fact termines whether there is evi sufficient in containing clothing the dresser men’s juror dence from which a reasonable could appeared what to be his bedroom. guilty beyond have found the defendant a In applying reasonable doubt. this stan Dunnerman, trial, Langdon’s
At Mr. Mr. dard, the Court: Coleman, and an officer who searched (but must the crime look the elements of the home not the officer who found and in turn.... [The consider each the handgun) 9-mm testified the above required Court to take the evidence is] facts. The photo- also shown light most to the State favorable bedroom, graphs of the guns master the to grant and the State all reasonable closet, and ammunition the and the inferences from the [The evidence. handgun drawer where the 9-mm am- and inferences, disregard[s] contrary Court] munition were found. The record is they unless and logi- such natural clear type as what of ammunition was in cal that rea- extension evidence guns drawer and which or it was juror would be unable to sonable disre- for, although photographs show gard Taking them. the evidence this the drawer contained than type more light, whether [the Court] considers] of Finally, employee ammunition.3 an of juror reasonable could find each of the County depart- St. Charles sheriffs beyond elements a reasonable doubt. County ment testified that St. Charles rec- Grim, ords did not indicate that Mr. cert, denied, 1993), banc U.S. had applied permit for a there for the 9- (1993). 562,126 S.Ct. L.Ed.2d 462 or, mm handgun and in- Smith Wesson deed, any for of his also guns. She Courts view evidence testified her records would not reflect light give most favorable to verdict applied any permits whether he had state of all in the benefit reasonable But, registered doing, will guns elsewhere. ferences. so courts though photograph 3. The of the drawer was taken of ammunition are visible. boxes removed, handgun al- after the 9-mm supply missing give Missouri, of retained unreasonable, benefit speculative of Smith & Model Wesson 915 9mm Semi- Whalen, forced inferences. State # pistol, VCH1210, Automatic serial 181,184 (Mo. 2001). Second, that the Smith & Wesson Model 915 9mm pistol, Semi-Automatic Ill SUFFICIENCY OF EVIDENCE serial #VCH1210 was the property OF RETAINING STOLEN PROP- another, and ERTY Third, that the time at defendant re- A. Retaining Elements Stolen Prop- tained this he property, knew or be- erty Include Scienter lieved it had been Proof of Fourth, that defendant retained the
This agrees Court with Mr. property purpose withholding for the present the state failed sufficient it from permanently, the owner juror evidence -to a reasonable Fifth, had a value of find a reasonable doubt that he dollars, at fifty least one hundred committed the of retaining offense property in violation section you 570.080. then will the defendant guilty find That statute in relevant part states receiving person “[a] commits the crime of receiving if purpose de- Mr. Langdon did not contest por-
priving the owner interest lawful tions of the submitting verdict director therein, receives, retains or disposes of *6 that the 9-mm Smith Wesson was property knowing of another that it has stolen, $150, that it value had a of over believing been that it has been that it was dresser drawer. added). (emphasis stolen.” Sec. 570.080 submitted, He did contest the other issues however. In particular, argued he issue, In resolving this it is impor there was insufficient evidence to show keep tant to in Mr. Langdon mind that is in bedroom or dresser which the charged gun, not with of the theft but with him; belonged thus, was found to retaining require stolen cases Further, possession. did not prove that, to person convict a under section he argues, the state failed to make a sub- retaining 570.080 for stolen property, missible case on elements three and four (1) state must show that: defendant re crime, require proof only which (2) stolen; property tained the that was gun, but also that he defendant exercised dominion over the knew or was stolen and believed it intend- (3) it; property by retaining deprive ed to of it. the owner knew believed that the property was (4) stolen; and defendant intended to de B. Unexplained Recently Possession of prive the owner of lawful interest the Stolen Property Evidence Scienter of 570.080; Bird, property. Sec. State v. 1 determining In whether the state 62, E.D.1999). (Mo.App. S.W.3d 63-64 issues, met proof its burden of on these Accordingly, the director verdict below important is keep mind that Mis stated: souri, states, unlike in mere some you
If find and believe from the evi- unexplained possession recently of stolen dence a reasonable doubt: property does not rise to an inference give First, 31, receiving that on about March possessor guilty 2000, Charles, Gardner, County St. stolen property. State v. 741 State
813 1987). off, was sold 1, Compare or evidence that it 9 filed S.W.2d Annotation, e.g., See “Possession than its reasonable value. cases discussed less (MoApp. E.D. recently goods by charged at 222 Morgan, 861 S.W.2d 1993) receiving ques- price them numbers (inadequate as evidence on and serial off); 187- guilty knowledge,” tion 68 A.L.R. v. 682 S.W.2d pried Applewhite, State 1984) (1930); Annotation, 185, be- (MoApp. (deceptive 93 “What constitutes 187-88 statements); v. ‘recently’ within rule false State havior and infer- Richardson, 755, guilt unexplained possession (MoApp. 757 ring S.W.2d from E.D.1990) (“receiving 1202-42 at a far property,” goods price such A.L.R.3d (1979). value, ... its reasonable market below awith or conduct inconsistent declarations evi This does mean that such innocence, false, evasive or claim of Rather, unex dence is irrelevant. while contradictory posses- statements about prop plained knowl- from which sion circumstances give not be erty sufficient in itself inferred”); belief can edge or circum guilt, rise to an inference it is “a Sours, (MoApp. 258-59 633 S.W.2d stance that is entitled to consider behavior); S.D.1982) (suspicious, deceptive together with the other facts and circum 379, 382 Taylor, 691 S.W.2d and State Gardner, in the case.” 741 S.W.2d stances E.D.1985) (same plus evasive (MoApp. Accord, Lindsey, at 9. State v. contradictory and similar statements W.D.1993). Indeed, be (Mo.App. innocence). inconsistent with conduct cause direct evidence that a defendant knew or believed property was stolen had Unex- C. Evidence Defendant available, normally is seldom the state Recently Stolen plained Possession of rely on evi forced such circumstantial Property prove intent. dence defendant’s criminal the law retention applying regarding Morgan,
See State v. case, this of stolen the instant E.D.1993). (Mo.App. *7 the first whether Court must determine have Prior cases identified numerous was in Langdon shown that Mr. state has types of “other facts and circumstances” possession recently stolen that, together unexplained possession absent evidence even property, for such recently property, have been made a does not claim that it has the state sufficient to case make submissible submissible case. requirement proving of the scienter says that receipt or retention 1. Possession. The state property. of stolen the Shigemura, Langdon possessed that Mr. proved it E.D.1989), stated, handgun showing that he (MoApp. giving by “the stolen 9-mm false, in that it contradictory gun evasive or statements dominion over the exercised defendant, containing in a by the such as his denial was found dresser drawer in bedroom. day clothing the car had been on the of the men’s the master used this, jury could argues, his was the state the robbery and statement that no one From home, Lang- room to Mr. belonged in which be infer that the matters in possessed was it. establishing knowledge.” and that he what considered don suspi- that he never ad Similarly, the courts Mr. counters will consider behavior, gun the evi- that the in which conduct and mitted bedroom deceptive cious altered, or was the such was his that the dresser dence that was was found had, argues if he he by having serial obliterated his. Even as numbers never proved gun when the put was it was clear how it came to drawer or that he used the drawer house-—Nathan brought it there after which gun was found with sufficient stealing it. There many could be innocent frequency to gun have found the explanations after it for how it came to inbe placed was there. there, drawer —that Nathan hid it or Na- than gave it to his father present, as a While agrees this Court with defendant it, that Nathan told his father he borrowed that the possession state’s evidence of was or even that his father it in confiscated weak, the Court finds that it was sufficient order to return it once he-found Nathan jury to allow the Langdon’s to infer Mr. possible had stolen it. It is also that Na- The evidence as to said, “here, Dad, than I stole this types of clothes and furniture in the you why But, you keep don’t it.” like the — bedroom which the was found was mentioned, other possibilities just to so sufficient to jury to infer that infer jury would have had engage the room belonged to Mr. Langdon and pure speculation. dresser, containing only men’s dresser, clothing, was his and so that he at The record does not show when also constructively least possessed the gun. gun came placed to be in the dresser draw- infer, could even gun’s from the er. If it occurred soon burglary, after the drawer, presence in the that defendant and if Mr. used the drawer with present, knew it was although an any such frequency, he probably knew it was where, inference is certainly required present. If it only placed was in the draw- here, there is no showing when or however, how er to police, hide it from the placed in the drawer or how for some other reason placed there often Mr. Langdon used that drawer. only some time after burglary, then no such inference can arise. Unexplained, £ Possession Property Recently Stolen. It is less clear just It is to avoid such confusion proved state has Lang- say the eases that the evidence must don’s was unex unexplained possession show plained or that it while it notes, As C.J.S. “[t]he Here, could be considered recently stolen. proper recency test of is whether the time unlike in many cases cited the parties, lapse between the theft and pos accused’s although appears no one has been con session of the sufficiently *8 short, victed of committing burglary itself given case, the circumstances of the and the record is merely suggestive of preclude possibility of a transfer of Nathan’s burglar, involvement as the both the stolen property from the thief to an the state and the suggested defense to the party.” innocent 76 Receiving C.J.S. Sto argument (1994). in Goods, that the actual theft of len sec. 27 What was committed person a other sufficiently depend recent will on the facts than the specifically, case, that Mr. and particular circumstances of the defendant — Langdon’s stepson stolen, Nathan gun, including stole the type how acting a tip provided by sell, on easy his friend Mr. it likely is to and how it to be Coleman. Nathan in See, Sours, lived the same innocently. house sold e.g., 633 Langdon. as Mr. nothing explains While (possession' S.W.2d at pistol 258-59 sto how the earlier, second came to be in secreted len 8 days later sold for half its bedroom, the dresser in drawer the master value and suspicious suffi comments both the state and argued standard); Hedrick, defendant that cient to meet State v.
815
W.D.1973) (19
sup-
Particularly,
no evidence to
(Mo.App.
there is
D. Additional Showing Circumstances hidden in garage. charged his He is not Scienter with stealing any of these Even guns. victim had not permits obtained for his Even had this Court believed other guns two that were stolen. The a the state made showing sufficient to state not suggest does either defendant’s unexplained possession show of recently of permit the victim’s lack for their stolen property, such does evidence not guns allows an inference that those itself permit an inference of retention of guns were stolen or that knowingly stolen property, for the requires crime also stolen as them. a showing is, of scienter —that that defen Lack permit acquire of local dant possessed property knowing or be found in possession simply someone’s can- lieving to be stolen. While evidence of be, itself, not be held sufficient “other possession recently of is supporting circumstantial evidence” in- relevant to requirement, the scienter it is ference that he knew believed it to be not in itself sufficient to meet it. It must stolen, in the of absence some other basis that, be combined with other evidence to facts, inferring, particular on the gether with the possession, evidence of will knowledge defendant had or belief of its permit the jury to infer that defendant deprive status as stolen and intended to its knowingly possessed the goods. owners of it. Here, argues the state it offered such that Mr. showing did IV. CONCLUSION permit not have for the It cites no reasons, case in which of a For permit lack has these been Court determines found to support speculation an that only supports inference knowl- the infer- edge or belief that property is how- ence knew or believed the ever, and we type have found none. The deprive was stolen and intended to its prior circumstantial evidence that cases it. owner of This not to sup- sufficient have found sufficient things includes such port judgment felony for the class C altering goods, appearance of receiving stolen property. To hold other- numbers, false, hiding giving serial evasive wise would relieve the state of its burden statements, or contradictory suspicious of proving Mr. Langdon guilty behavior, deceptive an sale for inade- reasonable doubt of each element quate price, and forth. so offense. The judgment reversed. Possession of a gun having ap- without WHITE, C.J., WOLFF, BENTON and plied locally par for a permit is not on with TEITELMAN, JJ., concur. permitting above circumstances an in- of knowing ference of stolen LIMBAUGH, J., in separate dissents evidence, property. Even if it is some it is opinion filed. enough, alone or combined unex- J., plained PRICE, opinion prop- concurs LIMBAUGH, erty, to make a submissible ease. J. Here, weak, particularly the evidence is LIMBAUGH, JR., STEPHEN N.
for, concedes, as the state defendant had Judge, dissenting. applied any for a to acquire respectfully I dissent. handguns, including those *10 dispute acquired, reviewing sufficiency does not were In lawfully of evidence claims, gun and he had no for determining the this-Court is limited to
817 1) stepson could not his sufficient stolen because whether the evidence was for (at 20, gun legally age the have obtained juror to find each element of reasonable per- underage have obtained he was doubt. the crime reasonable 2) mit), no need to conceal there was O’Brien, 212, (Mo. and v. State 857 S.W.2d logi- are indeed These gun the otherwise. 1993). so, doing In the Court must banc jury’s the find- support cal inferences that the in the most favor- light view evidence ing. and as all accept able to verdict true the that the
logical
support
jury’s
inferences
was
that the evidence
Having conceded
Grim,
finding. State v.
854 S.W.2d
jury
allow
to infer Mr.
“sufficient to
the
1993).
engages
The Court
gun,”
the
Langdon’s possession of
in such
review out of deference for
infer,
limited
the
jury
that
could even
from
“[t]he
fact,
is
drawer,
the role of the trier
who
neces-
gun’s presence
the
that defen-
...,”
sarily guided by
in its search
present
only
inferences
it was
the
dant knew
long
the
As
these inferences
the
truth.
as
issue is whether
remaining
by
finding
and are
the
that
supported
support
are reasonable
was sufficient
evidence,
gun
the
knew or believed
was
this Court must defer
the
knowledge
stolen. The
or belief element
ignore
opposing
trier’s
all
judgment
O’Brien,
by proof
a defen-
be established
inferences.
at
857 S.W.2d
215-
possession of recently
dant’s unexplained
with the defen-
property coupled
It
prohibited indulgence
is this
con-
suspicious
deceptive
dant’s
conduct.
trary
majority
inferences that leads the
Priesmeyer,
See
v.
State
presented
conclude that
the evidence
at
Taylor,
State
(Mo.App.1986);
support
jury’s
trial was insufficient to
the
That is
(Mo.App.1985).
However,
verdict of
fact
guilt.
the
that
exactly what
here: Defendant’s
exists
majority
the
can
expla-
articulate innocent
of a
possession
nations for defendant’s
possession
just
three months before
hidden
justify
rejection
does not
majority,
one of
dresser drawers. The
his
entirely logical
the
drawn
inferences
however,
though
jury
that
the
concludes
jury
the
jury’s
or render the
conclusion
reasonably
could
that
deduce
speculative.
either unreasonable or purely
possessed
gun,
the
the evidence does
Grim,
import
That was the
the possession
is unex-
establish
specifically repudiated
which
Court
ac-
plained
notion that the state’s circumstantial evi-
and,
quired
consequently,
could
any
dence must be “inconsistent with
rea-
guilt
inferred
from
circum-
have
theory
[the defendant’s]
sonable
inno-
surrounding
possession.
I
stances
cence.”
property” Recogniz- is no less mystifying. kept his bedroom closet. This conceal- ing concept “recency” inher- gives ment alone rise to reasonable infer- relative, ently both federal and state guilty ence of knowledge. uniformly courts have declined to establish sum, In viewing the evidence the light a bright-line test determining what verdict, favorable accept- most to the and theft, recent choosing constitutes a instead logical ing all inferences derived there- to define its limits to reference from, I cannot jury’s conclude unique facts and of each circumstances finding was based on unreasonable infer- particular case. A.L.R.3d sec. at l[a] supported by ences “pure speculation.” (1979). result, As “[w]hat be The evidence to support was sufficient may vary considered ‘recent’ ... from a jury’s finding appellant days many few months.” State v. requisite with the knowledge. As
Broum, such, I would uphold appellant’s conviction 1988). standard, Under this flexible and judgment and affirm the of the trial court. given the facts surrounding defendant’s ac- quisition gun, three months
such a prolonged interval theft between to preclude an inference of
guilt. Hubbard, See (Mo.App.1988) (finding that stolen acquired
automobile that was six months qualified “recently
after the theft as property”). Tracey FARMER-CUMMINGS, L. addition, there is ample evidence of Appellant, suspicious defendant’s deceptive con- duct in connection with his the recently PERSONNEL PLATTE POOL OF First, testimony adduced at trial estab- COUNTY, Respondent. lished that stepson defendant’s was only No. SC 85084. young get 20—too see permit, sec. 571.090.1(1), (permit RSMo applicant must Supreme Missouri, Court of twenty-one years age), at least En Banc. such, young legally too obtain the (unlawful gun, 571.080.1, see sec. RSMo July receive or deliver a firearm concealable
unless the transferee obtains delivers the transferer valid authorizing firearm). acquisition The obvi-
ous is that inference defendant knew that
his stepson gun unlawfully. obtained the
Second, and even more importantly,
evidence at trial also established bedroom, in appellant’s was found drawer,
his dresser hidden under his cloth-
ing. Tellingly, many defendant’s