State v. Lawrence
312 N.W.2d 251
Minn.
1981
Check Treatment

*1 and, commit the crime after first claim- otherwise, picked up he admitted he had required girl. jury was not exculpatory version of believe his

events, namely, merely that he had tried to girl really

scare the had not forced her penetration.

to submit to sexual defendant,

The other issue raised applicability of section is based supposition

on the actu defendant was However,

ally convicted of four offenses.

our examination of the record fails to estab adjudicat

lish that defendant was formally

ed guilty offense other than that for

which he was Accordingly, sentenced. as Owens, (Minn.

State v. 304 N.W.2d 916

1981), Terry, and State v.

(Minn.1980), we conclude that the issue

hypothetical question which we need not

decide.

Affirmed. Minnesota, Respondent,

STATE of

Douglas LAWRENCE, Appellant. Albert

No. 81-275.

Supreme Court of Minnesota.

Nov. 1981. *2 trial, property.

conceal stolen At defend- ant took the stand and testified he was the (the having thief state conceded the statute theft) expired of limitations had and possession admitted he had of the stolen garage items in July his on 1980. argues 1. Defendant first he can receiving proper not be convicted of stolen ty because he was the thief and he cannot quarrel receive from himself. One cannot Zalasky, Harry Ray N. and Jeff M. Min- statute, however, in logic. with this The neapolis, appellant. for “receiving”; applies cludes more than it to Gen., Paul, Spannaus, Atty. Warren St. “receives, possesses, knowingly one who Carolan, Atty., Robert F. Co. and Mark transfers, any stolen buys or conceals” Lystig, County Atty., Hastings, Asst. for possession both and property. Here respondent. present. may concealment are While it happen that one should not be convicted for item, stealing concealing and the same (1980), acceptable 609.04 it is Minn.Stat. § charge to someone with either or both of SIMONETT, Justice. only fenses and convict on one of them. Defendant, facts, stipulated on was found section 609.53 is directed at traffick Since guilty “receiving of the crime of stolen ing might argued in goods, it be property” worth more than in violation $150 against to use the statute here the thief is 1(1) (1980). subd. Minn.Stat. § purpose to use it for a for which it was not by Defendant was sentenced the trial court intended. But the fact that defendant prison, to 26 months in with execution keep enjoy and his stolen merchan chose stayed years, for 5 defendant the serve pass only rather than it on to a fence dise days jail. appeals, first 45 Defendant sense, him, practical his own makes a claiming prosecution his should have been dictum in fence. While some State Car (a) property barred because he stole the ter, (1972), 196 N.W.2d 607 involved and so could be convicted of support position, seems to defendant’s theft, (b) the statute of had limitations holding in Carter we reaffirmed our State being run on the crime for which he was Jones, Minn. prosecuted. We affirm. prosecutor that a has the discretion charge a who steals with conceal property was stolen on defendant property stealing rather than with July Although police appar- 1977. thief, if the available evidence establishes the for ently suspected then defendant as the mer. they did not have sufficient evidence to later, charge July him with theft. But on properly We hold defendant 2, 1980, acting newly-ac- on the basis of concealing convicted of under quired information, police obtained a 609.53, notwithstanding section that he was warrant to search defendant’s residence and the thief. drill, grinder, magnetic found a disc 3-year 2. Defendant next contends the

jigsaw tools, and numerous other all items prosecution statute of limitations bars his stolen in the 1977 theft. On “receiving property.” Again we for 1980,, theft, more than 3 after the but disagree. only a discovery month after of the stolen items, prosecuted, must complaint against timely the state filed a To be defendant that, “within three after alleging July defendant on or about receive, possess defendant did of the offense.” Minn.Stat. commission argues property 628.26 Defendant includes conduct which con § crime is committed and the statute of limi- verts to the defendant’s use or time he tations starts to run as discovery renders its more difficult goods. “receives” the stolen The trial court owner. Or as the Massachusetts court has rejected argument, holding it, put enough it is to show the defendant one, observing purposefully acted to withhold the *3 oper- proper that otherwise “the modus of rightful from its owner or to make more it steal, legiti- conceal then andi would be and difficult for the owner to discover. Com mately sell the contraband.” Ciesla, 346, monwealth v. 380 Mass. 403 words, (1980). N.E.2d 381 In other while commonly The crime known as “re concealing may the initial act of meet the ceiving property,” stolen when used in a conduct, proscribed definition of the it does sense, misnomer, shorthand is a since it States, Hyde not exhaust it. Cf. v. United legal includes a number of different con 225 32 56 L.Ed. 1114 S.Ct. cepts separate in addition and from re (1912). say may This is not to there not be ceiving. The only offense includes not re concealment, single instances of a act of ceiving, concealing; but since it in such as a defendant who assists a 1, 1979, buying; cludes and since it possessor goods proper of stolen to hide the possessing transferring. also includes and Ciesla, ty. supra. See any The issue here is whether of these may continuing terms be deemed in nature. “possessing,” We also conclude the word likely descriptions two most of defend to the statute in was intended added possession ant’s are conduct and conceal continuing pos a offense. “To denote either, both, apply? ment. Does or In an property”; sess” means “to have and hold a swering question keep this we should in pos meaning second is “to take into one’s continuing mind that a crime is not in na session.” Webster’s Third New Interna if clearly legis ture not so indicated receiving But since al Dictionary. tional lature. Toussie v. United 397 U.S. ready meaning pos includes the second of 112, 115, 858, 860, L.Ed.2d sess, legislature would not and the intend redundant, legislature be we take it concealing Both possessing and are distin- “possess” passive intended to be used in its guishable from receiving in that the latter sense, status, e., continuing i. to describe a single connotes a possessing act. Behind simply property. to have and hold This however, concealing, and is the notion that court, reasoning of the trial and we being kept in from someone Supporting it. our view that with violation of duty duty to return and this a con possession is both a status term and to return continues. One of the reasons for tinuing Eichelberger offense are v. United including possessing concealing and as States, 1958), (9th and 252 F.2d 184 Cir. prosecute crimes is to be able to even Fleetwood, F.Supp. 129 United States though receiving. the time run has out on (D.Or.1980). Contrary is United States Surely purpose this serves the of the stat- Mendoza, (N.D.Cal.1954) F.Supp. 367 ute, trafficking which is to in deter stolen (retaining goods stolen is not goods. offense). sense, In one it can be said conceal therefore, hold, that either We single putting example, act —for goods is a concealing or place leaving in a secret it purpose for the of the there —but we have not construed the term We hold this defend statute of limitations. Concealing, in so limited a fashion. we may ant not assert the statute of limita Simonson, have said in State v. goods he (1974), kept tions as a bar where he is not limited to meaning hiding secreting garage, thereby its literal not of stole in his house and goods making may Indictments for be only possessing the their murder found discovery difficult for more the owner.1 time after the death of the at killed; violation indictments for of sec- problem concern here What causes is the (1) tion subdivision clauses balancing society’s protecting in interest in persons society’s stale claims in- from with (2) proper shall be found filed in deterring trafficking terest theft and within six court after the commis- Note, goods. As the author offense; cases, all sion other Law, Statute of Limitations in Criminal indictments shall be found and filed in out, U.Pa.L.Rev. points proper court three within after notion of a crime is valid in offense; the commission of the but the situations, many applied but “it should during time which the defendant shall scale; only on by applying a limited of, be an or usually not inhabitant resi- loosely, potentially doctrine courts have a within, state, dent shall not consti- powerful weapon avoidance stat- *4 any part imposed tute of the limitations utes of limitations.” by this section. We this is a where think situation explicit. legislature This statute is The being the crime not continuing doctrine is by providing this section in amended 19761 applied and where loosely application its is valid and best serves to reconcile the con bribery statute of for that the limitations flicting process interests involved. The due involving public years, be six officials clause, add, might protect we is to available provide continued to that “in all other a defendant who is the con under cases,” murder, except the limitations tinuing theory if the preaccusation years. example, remain at three For would delay prejudices actually substantially manslaughter crime of the serious remains Lovasco, his defense. See United States years. at three 783, 2044, 97 U.S. S.Ct. 52 L.Ed.2d 752 of It seems that this is a matter substan- Marion, and United States v. legislature tive to 307, 92 law determine. 455, (1971). U.S. S.Ct. L.Ed.2d 468 legislature except Had the wished to or

Affirmed. the the extend limitation on crime of crimes, concealing stolen or other property SCOTT, (dissenting). Justice easily it could have done so. respectfully I dissent. I would hold that prosecution by barred defendant was dangers recognition of associated In the the three-year statute of limitations. allowing prosecutions to “ferment end- with files,”3 (1980) legislative provides:

Section 628.26 the bodies enact lessly in by robbery, wrongfully possessed property knowing obtained 1. Defendant first the sto the goods July len gust by robbery, in late of 1977. Not until Au to be same stolen or obtained 1, 1979, legislature possess did the make may be sentenced as follows: crime, expressly adding the new received, that (1) property If the of value apply only amendment was to com to offenses bought more, $150 or or im- concealed is possessing mitted on or after that date. Since prisonment years for not than ten more or to offense, and since defendant $10,000, payment more of fine of not than possess continued to the stolen tools after Au both; 1, gust 1979, stolen, knowing them to be we “possesses, (above) The words transfers” were knowingly hold his conviction for the crime of 29, 1979, 232, by 1, May added Act of ch. § 2, goods July on or about 484, provides: 1979 Minn.Laws which also 1980, proper. being is Defendant is not con 1, act This effective 1979 and any prior victed for conduct date. to that applies to all offenses on or after committed persons date that and to all convicted of a 8, 1976, 184, 1, Apr. 1. Act of § ch. crime committed on or after that date. Laws 636. Id., 3.§ 2. The involved in crime this case is Minn.Stat. 1(1) (1980): upon § of limitation are founded subd. 3. “Statutes theory prosecutions should liberal that not Any receives, possesses, who trans- endlessly fers, to ferment the files of the allowed buys or conceals brought could be 20 or more after the such as statutes of limitations Minn.Stat. (1980). holding majority’s original presented by 628.26 theft. The issues § legislature’s intent was to make inevitably that prosecutions such would involve this crime a offense contravenes presentation of stale evidence or create general concerning the construc- three rules an untenable situation where the defendant type question. tion of statutes of the could not sufficient evidence for a obtain rule, general The first endorsed Note, proper defense. of Limi- See Statute Court, Supreme is “that crim- United States A tations Criminal Law: Penetrable Bar- liberally inal limitations statutes are ‘to be Prosecution, 630, rier 102 U.Pa.L.Rev. ” interpreted repose.’ in favor of United In view of fact that Habig, States v. 390 U.S. 88 S.Ct. greater of than three are limitations 926, 929, (1968) (quoting 19 L.Ed.2d 1055 of reserved for the most serious offenses Scharton, United States v. 285 U.S. officials, bribery public I murder and 416, 417, (1932)); 52 S.Ct. 76 L.Ed. 917 legislature cannot that intended reaffirmed Toussie subsequently v. Unit- place type crime in the 112, 115, ed category. same (1970). Second, 25 L.Ed.2d 156 where a policies Consequently, neither specif- criminal statute of limitations sets a gave rise to criminal statutes of limitations period particular ic limited for a class of wording supports nor the of the statute crimes, recognized par- it has been that the majority’s legislature conclusion ticular offense should not be construed as a intended the offense with which the de- explicit one “unless the lan- *5 to be a fendant was guage of the substantive criminal statute Therefore, three-year period crime.5 conclusion, compels such a or the nature of having prior prosecu- run defendant’s Congress the crime involved is such that barred,6 tion, and I prosecution was must it be assuredly have intended would reverse. treated as a v. one.” Toussie at at United WAHL, (dissenting). Justice added).4 Finally, majori- (emphasis ty’s position keeping is not with the of Justice join I in the dissent Scott. general practice construing criminal stat- liberally utes in the defendant’s favor. See Satz, F.Supp.

United States

(N.D.N.Y.1952). position

To with the will state’s

yield absurd and unintended results. Pros- “receiving

ecutions for property” Tahash, Sargent government explode 5. See State ex rel. after witnesses (1968) (holding proofs necessary protection that the 160 N.W.2d to the lapse under Minn.Stat. passed crime of child abandonment accused have beyond availability.” sheer of time (1961) (since repealed) generally Eliopou § 617.55 United States v. recognized los, which is not (D.N.J.1942). as a F.Supp. by any committed overt act but omission neglect). interpreting 4.The Toussie the feder- court was al criminal statute of limitations in 18 U.S.C. appropri holding preclude 6. Such a would not § 3282 Cong litigation. ate civil See In re Estate of don, 1981). (Minn.