STATE of Missouri, Respondent, v. Fredrick John McCOY, Appellant.
No. 45166.
Missouri Court of Appeals, Eastern District, Division Three.
Jan. 11, 1983.
Motion for Rehearing/Transfer to Supreme Court Denied March 17, 1983. Application to Transfer Denied April 26, 1983.
647 S.W.2d 862
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
REINHARD, Judge.
Defendant was convicted of receiving stolen property with a value of more than $150.00, a violation of
Defendant challenges the sufficiency of the evidence. On appeаl, we must consider the facts in evidence and all favorable inferences reasonably drawn therefrom in the light most favorable to the state, casting aside contrary evidence and inferences.
On December 29, 1980, someone kicked in the door to the apаrtment of Mr. James Stieber and took a Kenmore microwave oven with serial number 9E1701287. A microwave oven was furnished with each apartment in the building by the landlord. Over a period of three months, six or seven microwave ovens were taken in other burglaries in this apartment building.
On the evening of January 3, 1981, Detective Lawrence Stevens of the St. Louis Police Department was employed as a security guard in the apartment building when he heard “a loud noise like someone kicking in a door.” He immediately went to the second floor where he met dеfendant in the hallway who told him someone had just kicked in his door and had run in the detective‘s direction. The detective, though testified that no one had passed him and he had seen no one in the hallway after he heard the noise. Defendant reported nothing missing from his apаrtment.
On January 7, 1981, Detective Stevens and three other police officers returned to the defendant‘s apartment with the belief that there was a stolen microwave oven there.2 After they entered the apartment, Detective Stevens noticed a microwаve oven unplugged and sitting on the kitchen counter with its back facing into the room. When the microwave oven was originally installed in the apartment, it was facing the opposite direction. It was the only microwave oven in the apartment. The detective subsequently discovered that the serial number on the microwave oven was the same as that reported stolen from the apartment of Mr. Stieber. At that point, defendant returned to his apartment, acknowledged the microwave was his and was placed under arrest.
The construction superintendent for the company which built the apartment com
Defendant testified that he moved into the apartment in December of 1979. He testified that the miсrowave oven police found in his apartment was the same one that was in his apartment when he moved in and could not be the one stolen from Mr. Stieber‘s apartment.
The state‘s verdict-director provided that the jury had to find:
First, that on January 7, 1981 in the City of St. Louis, State of Missouri, the defendant retained a Kenmore Microwave Oven, and
Second, that the property was that of another and had been stolen, and
Third, that at the time defendant retained this property, he knew or believed it had been stolen, and
Fourth, that the defendant retained the property for the purpose of using or disposing of it in such a way that made recovery by the owner unlikely, and
Fifth, that the property had a value of at least one hundred and fifty dollars.
Defendant contends that the state failed to prove: 1) that defendant rеtained the property in such a way that made recovery by the owner unlikely; 2) the property was stolen and that of another; and 3) that defendant knew the property was stolen.
Defendant contends that as to the fourth element in the verdict director, there was nо evidence that the defendant retained the property for the purpose of using it in such a way that made recovery by the owner unlikely. We disagree.
It has long been established that ownership of stolen property may be charged either to the actual owner or the one rightfully in possession and a showing that the property was taken from one who merely had charge and control thereof is sufficient. State v. Wilhite, 587 S.W.2d 321, 324 (Mo.App.1979). Lawful custody and control of property, even though actually owned in the formal or strict sense by another, is in the eyes of the law a sufficient attribute of ownership to support an averment and proof of ownership. State v. Pulis, 579 S.W.2d 395, 399 (Mo.App.1979); State v. Hill, 528 S.W.2d 798, 801 (Mo.App.1975).
James Stieber testified that he leased his apartment for a period of one year and that the apartment and its contents were under “his care, custody аnd control.” He further testified that he gave no one permission to enter his apartment on December 29, 1980, or to take the microwave oven. Although it is apparent that Mr. Stieber did not own the microwave in the strict legal sense of title, it is evident that he had lawful custody аnd control of the microwave sufficient to constitute the owner for purpose of the offense of receiving stolen property. It is readily apparent that considering the circumstances in which the microwave oven was found, defendant intended to permanently deprive Mr. Stieber of his interest therein.
Next, defendant contends there was no evidence that the property was that “of another,” nor that the property was stolen.
Finally, defendant contends there is no evidence that he knew thе microwave oven was stolen. It is well settled that knowledge of the stolen character of goods is seldom proved directly and may be inferred from the facts and circumstances in evidence. State v. Miller, 433 S.W.2d 281, 283 (Mo.1968). Indeed, it is the unusual situation where there is direct evidence of the intent of a person charged with a crime and the requisite intent may and generally must be inferred from certain facts and circumstances. State v. Hayes, 597 S.W.2d 242, 248 (Mo.App.1980).
It has been held that the possession of recently stolen property does not give rise to an inference that the possessоr is guilty of the offense of receiving stolen property,3 but it is nonetheless, “a circumstance that the jury is entitled to consider, together with other facts and circumstances in the case.” State v. Sours, 633 S.W.2d 255, 258 (Mo.App.1982).
Other circumstances which may be considered include whether the defendant has givеn false, evasive, or contradictory statements as to his possession of the property, the nature and character of the property as passing readily from hand to hand, suspicious behavior, and other conduct and declarations of the defendаnt inconsistent with his claim of innocence. Hayes, 597 S.W.2d at 248; State v. Sours, 633 S.W.2d at 258.
Here the property was easily carried and was found in defendant‘s apartment next door to where the burglary occurred. By its position in the kitchen it could be concluded the microwave was not in use and had either just beеn brought in or was about to be taken out of the apartment. The jury could have considered that defendant‘s explanation of his possession of the property was false, that he staged the attempted burglary of his own apartment five days after the burglary of Mr. Stieber‘s apartment to dispel suspicion from himself and he apparently disposed of the microwave which had been originally furnished with his apartment.4
Considering the evidence, the circumstances, and the suspicious behavior of defendant, we have concluded therе was sufficient evidence to warrant the jury finding defendant knew he was retaining stolen property.
Affirmed.
CRIST, J., concurs.
CRANDALL, P.J., dissents in separate opinion.
CRANDALL, Presiding Judge.
I respectfully dissent. The evidence was insufficient to prove beyond a reasonable doubt the appellant knew or believed the property in question was stolen. Thеre was no direct evidence presented on that element of the offense. Further, there was no circumstantial evidence adduced to satisfy the statutory rules of evidence relating to appellant‘s mental state.1 I do not mean to
I believe the State has failed in its burden of proving beyond a reasonable doubt the requisite mental state of the offense charged. I would reverse the conviction and order the appellant discharged.