State v. Murphy

in the construction of a being was used Act, by Chapter enacted Tax Court Our S.L.U.1977, Chapter public which was not use.11 80, highway open and codified U.C.A.1953, 59, authorizes review of Title this by The review Court Tax court of decisions by the district in these Tax judgment of the district court pro- 59-24-3 thereof Commission. Section is on the proceedings review Commission novo: that is to be de vides that the review They are judgments: same basis as other of law is, questions in which all a new trial verity;12 presumptions entitled to the that court. fact are addressed to Such and to show upon appellant the burden is appli- the rules governed by are proceedings error; there was will not trials; appeals may be other cable to findings reverse unless the are without sub therefrom to this Court.9 taken evidence, there support stantial trial by facts found The essential law, error in which we have none of part-time the old road court are found here. and that even inadequate purpose; No costs awarded. Affirmed. plain- though project undertaken roadbed, it was so sub- was on the old tiff MAUGHAN, WILKINS, raised, HALL improved widened and

stantially STEWART, JJ., construction of a amounted to the concur. Further, plain- new road. completely large heavy-duty

tiff used off-road equip- highway.

ment in the construction of facts, the court concluded

Due to those upon public was not “used

the fuel meaning within the intent and

highways” statute, taxing quoted motor fuels

above. Utah, Plaintiff and STATE of uniformity principles Correct Respondent, urgence the Commission’s justify

taxation impose the statute was intended to v. trav tax on all fuel used motor vehicles MURPHY, Defendant Keith Wilburt eling public highways; and we have Appellant. apply types this would to all no doubt that No. 16412. upon public high which travel of vehicles they may engaged ways, though even Supreme Court of Utah. highw repair the maintenance or of such negating But we not see that as ays.10 do 9, Sept. taken the trial court that the view apply tax was not intended to fuel used earth-moving and con

by large, specialized which was not de equipment,

struction while it

signed highways, to travel on the Const, State, 238, VIII, provides: v. 84 S.D. 169 N.W.2d tafson & Co. Utah 9. Art. Sec. courts, Jones, judgments 47 S.D. “From all of the district In Alien v. Supreme right appeal (1924), there shall be a that: “A 201 N.W. 353 it was stated Court.” tractor used the construction upon’ high being ‘operated highway is not -49(c), quoted language in Section 41 11 See way proper Id. 169 sense whatever.” Corp., supra; 585, 174 Miss. State v. Louisiana Oil N.W.2d at 354. 165 So.2d 423 Hackett, 11 2d 12. Cf. Charlton v. Utah Am.Jur.2d, generally, 11. See State and Local Corp. Aggregate American Taxation, 616, 629; Oswald et al. John §§ Co., Utah, Buehner & Otto son, 291 P. 579 Cal. 7; Corp., supra, Louisiana note Dave Gus Oil Hansen, Gen., Atty. Robert B. William W. Barrett, Gen., City, Lake Atty. Asst. Salt plaintiff respondent. for MAUGHAN, Justice: appeals his conviction for The defendant violation of a stolen vehicle in possession of statutory All ref- 76-6-408. We reverse. Annotated, 1953, erences are to Utah Code as amended. was arrested on the morn-

The defendant 11, 1978, being ing of November after Dodge asleep found in the back of a brown the van was van. At the time of the arrest West, at 400 North 800 parked plain view about City, questioned Cedar Utah. When possession the van the his defendant an individual named “Mike” answered that van, sleep gave but no allowed him to explanation of who Mike was or how he could be contacted. prosecution

At the trial introduced testimony girlfriend, of the defendant’s Pledger, Pledger, Lori hereinafter concern- of the van. the defendant’s Pledger first took testified the defendant prior van to the time of possession of the walking arrest. recounted that while She apartment to an rented friends of the passed defendant she and the defendant parked community park. van which was in a Upon finding the not at home the friends for couple Hughes walked to Cafe coffee. Returning apartment they found the defendant’s friends at home and remained approximately there for two hours. they When the couple apartment, left the van, walked to the entered it and used it to initially drive to the home of the defend- ant’s brother apartment and then to the Pledger where with her living uncle. apartment This was located at 390 North West, City, Cedar Utah. The witness further testified she did not see the defend- again night ant but saw him the next day at school without the van. also She parked behind the testified she saw the van apartment building morning they after Boutwell, Hurricane, Ronald Brent used and saw the defendant arrest- appellant. defendant and day ed the next at the same location. prosecution’s correctly failure to complaint the In the information and receiv- identify crime of van in be- the elements more ing stolen under is 76-6-408 Company. the U & S Motor longed to which the however, reprehensible the manner in than evidence adduced estab- presented his case. The State’s Robert and Raina Robertson were lished representation elements of of the van.1 The current registered owners two-fold, e., (1) merely crime are i. receiv- passenger reg- Utah certificate of title and (2) the ing disposing property, or of and istration for the van the address of provided stolen, knowledge property the was evi- North, 56, ¶ the owners as 800 West 400 misunderstanding of dences fundamental presented City, Cedar Utah. The evidence very the the of the statute and essence explained at trial the owners lived at a the culpable general This misunder- activity. apartment located the park trailer behind standing scope of the nature and of the in which lived. The building Pledger park- crime remedied this Court. must be separat- which the ing lot in van was found ed park apartment the trailer and the build- guilty was found of violat- ing. 76-6-408, e., proper- receiving i. stolen pertinent part: This in ty. provides statute presentation prose- the the Following “(1) re- if he A commits theft cution’s case the defendant moved to dis- ceives, retains, disposes property of the or ground the charges against miss the him on that it has been sto- knowing of another a prima had failed to establish State len, or that it has been facie case. The court denied the mo- trial deprive the . with a . . the jury tion and submitted the case to owner thereof.” which returned a verdict. guilty Implicit language of the stat appeal the defendant claims trial On (1) crime: ute are the basic elements of the motion to denying court erred his dismiss sto property to another has been belonging him, ground charges against on 3 len; (2) received, the defendant retained facie prima State failed to establish a case. (3) at disposed property; or of the stolen the issue Although argued effectively is not disposing receiving, retaining the time or upon appeal, and the defendant’s brief em- be knew or property the defendant phasizes concerning irrelevant issues stolen; (4) lieved the property question, ownership of vehicle purposely defendant acted objected recognized critical error was property.4 owner of the trial; injustice at a serious would convict result if this Court refused to correct the defendant can be Before the receiving property error.2 ed of the crime of Therefore, properly presented prosecution’s 1. close of the case trial At the the issue judge appeal allowed state to amend the informa- and this should address review ownership tion to conform the es- it. Thereafter, during the tablished trial. Robert replaced and Raina Robertson U & S Motor requirement to the of- 3. This is fundamental Company as named owners in the information. State, 680, 558 fense. See Darnell 92 Nev. State, 185, (1976); 254 Felker Ark. Schad, State v. 24 2d Cf. Utah 470 P.2d Niehuser, (1973); 21 492 S.W.2d 442 (1970); (“However, recognize 246 we that if it (1975); generally Or.App. see appears justice require, that the so interests of Am.Jur.2d, Receiving Property, Sec. 66 Stolen even, errors review claimed [CJourt 7, p. proper objection.” the absence of the 470 P.2d 248). objection proper In this at case a Lamm, Utah, (1980), 4. Cf. State v. upon appeal error was submitted trial and States, Kirby see also v. United 174 U.S. State the defendant averred: “When the rested Commonwealth, (1899); Va. Parish v. time, the first evidence of the elements of the State, 42 Md. 145 S.E.2d 192 Beard v. missing crime were jury so that no App. Jackson v. 399 A.2d 1383 for the was involved and the court had a State, Md.App. A.2d duty jury." to withdraw the case from prosecution (a) property To withhold present quantum permanently must or for so period extended a or to use evidence sufficient to establish each ele- under such circumstances that a sub- case, ment of the crime.5 In the value, portion stantial economic they contends introduced thereof, or of the use and benefit would sufficient prima evidence to establish a fa- lost; or cie case for consideration the jury. We (b) To property only upon restore the agree cannot with this conclusion. payment of compen- a reward other Specifically, the prosecution argues they sation; or presented quantum sufficient of evidence (c) dispose To under from which the could conclude unlikely circumstances that make it doubt; (1) a reasonable the defendant re- that the owner will recover it.” another; ceived or retained the recognize proof We of a defendant’s (2) the defendant knew or believed the intent rarely susceptible is of direct property probably However, to be stolen. prosecution usually and therefore the must their argument overlooks two essential ele- rely on a combination of direct and circum crime, e., ments of the i. the fact the prop- stantial evidence to establish this element.7 erty was stolen the defendant’s intent However criminal convictions not be at the time possession.6 of the upon conjectures probabilities based or uphold before we can a conviction must Before an individual can be convicted of supported by quantum be a of evidence violating prosecution 76-6-408 the must es- concerning each the crime element of tablish the receiving, defendant’s acts of charged jury may from which the base its retaining or disposing of the conclusion guilt beyond a reasonable accompanied were by purpose a to doubt.8 deprive the owner thereof. case, In prosecution The legislature has specifically defined has to any failed introduce evidence either the term “purpose deprive” to in 76-6-401: circumstantial9 direct to establish and “(3) ‘Purpose to deprive’ means to have prove purpose an unlawful at the time of object: the conscious defendant’s of the vehicle.10 system juris- State, 5. Fundamental to our of criminal Wertheimer v. 201 Ind. prudence proposition is the that a is N.E. 40 presumed proven guilty. innocent until This concept pro- is embodied in 76 1 -501 which John, Utah, 7. See State v. 586 P.2d 410 “(1) proceed- vides: ing A defendant in a criminal presumed is to be innocent until each ele- Lamm, supra 8. See State v. note 4. charged against ment of the offense him is proved a reasonable doubt. In absence presented 9. The circumstantial evidence at tri- proof, acquit- such the defendant shall be al, points to the defendant’s innocence rather prosecution carry ted.” If the fails to its bur- guilt upon than and can not be relied as estab- establishing proving beyond den of a rea- lishing requisite specific element of intent. sonable doubt each element of the crime Burch, See State v. 100 Utah 115 P.2d 911 him, charged against the defendant is entitled (1941.) John, supra See also State v. note at acquittal. to an Housekeeper, See State v. (1978) (“It recognized is proving that the State has the burden of each 10. While the failed to introduce every element of the if offense and it fails element, evidence on this the existence of acquit- so to do the defendant is entitled to an by receiving it for a conviction of theft 140); Haywood, tal” at see also State v. recognized in the information which stated: N.C. 256 S.E.2d 715 defendant, Murphy, "... the said Keith Wilbert operable While there did are states in which receive or retain an the crime of motor vehicle receiving incorporate knowing stolen .. . and did does not so that said vehicle had specific element, a intent been exclusion of that stolen or that it had upon language ap- element is based been and did so with the to plicable judicial deprive oversight. statutes and not the said owner of the same.” See 76- State, 401(3). See Hamilton v. 129 Fla. 176 So. 89 chief was ever intro- state’s case in presented at [that] the evidence Under van to evening the vehicle for one duced show drove defendant at No one testified parked it the address was ever in fact stolen. and then nothing He al- the appel- owners.11 did stolen or that registered van was useful- appearance, impair Having its future ter the van to be stolen.” lant believed subsequent issue, or reduce its ness owners it is incumbent squarely raised requested The defendant economic value. whether above this Court to determine for its compensation no reward or other record. The allegation comports with the dispose not it under cir- return and did find, as out in Mr. pointed did not unlikely would make it cumstances opinion, that there was Maughan’s Justice it. would recover owners prop- an the owner of this intent to requir- erty, specific because no instruction failure to establish this prosecution’s addition, such In finding given. of the crime renders the requisite element only purporting to bear on evidence mo- court’s of the defendant’s trial denial that element of crime is that referred overruling our erroneous and mandates tion I opinion. Mr. Wilkins’ am com- Justice trial was presented it. evidence pelled complete there was agree support conviction insufficient on a absence evidence crucial probative and the should charged crime as element the crime and that defend- of law. guilty declared not a matter matter before the properly ant raised the WILKINS, with (Concurring Justice com- this Court. trial court and ments). duty is our under Burks v. Accordingly, it this case should be remand-

I concur that States, 57 437 98 S.Ct. United U.S. entry judg- of ed to the District Court for (1978), Massey, v. 437 L.Ed.2d 1 Greene not for that the guilty ment of the reason (1978), 15 57 L.Ed.2d U.S. 98 S.Ct. present any has evidence failed to State the with directions that to remand the case (the it the knew “. . . that that defendant discharged. A for a defendant remand be van) has that it been pursuant new trial is not to the appropriate .,” 76- probably has been . . Section my concurring opinion in analysis in stated Annotated, 1953, 6-408(1), Utah Code Lamorie, Utah, v. 610 P.2d 342 State amended. (Dissenting). HALL, Justice stipulation The made the by had from ma- and defense that the van been to the counsel I am dissent constrained not, days my to “missing” for three does it to conform jority since fails opinion view, evidentiary an level in appellate rise at all to re- principles of time-honored which men and this case from reasonable stated in previously has view. This Court guilt jury of women the could conclude it will not literally of cases that scores doubt on this essential reasonable on raised the first time address an issue for charged element the crime here. never By addressing issues raised appeal.1 (neither ap- below nor parties the on STEWART, (Concurring Justice with only effectively not tries peal), the Court and in with Justice WILKINS result Justice cir- litigants, the for the but also cases MAUGHAN.) on the opportunity part cumvents the to even address what ulti- The in this ease contends in his trial court defendant during dispositive issues. It is mately brief there was “no the the evidence become Laird, Utah, (1979); 472 State v. 926 11. Due the circumstantial character the intent, Lynch, proof concerning the facts defendant’s Lamkin Construction, Utah, relating ownership, (1979); Maltby location condi- v. Cox important. Mower, Utah, tion of the van become P.2d Heath v. Seagull Enterprises, (1979); Themy P.2d Utah, holding sampling 1. For a of recent cases so see Valdez, Utah, following: P.2d ble, and was owned U Motor my opinion totally that to so rule is & S Com- foreign justice. any event, to our In system I pany. At close of case in State’s agree cannot that the facts of this case chief, dismiss, not defense counsel moved to ruling, law, warrant a as a matter of grounds on the that no theft had been verdict be set and that the jury aside proven, grounds on the the evi- but be I discharged. Additionally, Robert ownership dence established am persuaded jus- not that the interests of Raina rather than U & S Motor Robertson tice such ruling. will enhanced motion, Company. ruling Prior to majority opinion is based on the provoked prosecutor the court amend premise that there is a lack of reasonable to conform the evidence information support jury’s evidence for con- purpose was and a motion made for that the van in clusions that was stolen granted. objected counsel Defense and that defendant formed the criminal amendment, thereby. claiming prejudice necessary intent to constitute the offense of motion to dismiss for fail- Defense counsel’s However, of stolen property. present prima ure to facie was there- case fact-finder, is not to act as but is upon denied. survey bound to the facts contained in the guilty found the defendant light record in the most favorable to the appeared charged. When defendant so, below.2 judgment Having done I can again sentencing, counsel moved defense only conclude that there is an adequate dismissal, for a or for a on the new factual basis in the to support record newly-discovered basis of a sale from bill court, judgment conviction and the trial Robert and Raina Robertson to U & S Mo- notwithstanding points of error actually claimed again tors. Defense counsel defendant, by the asserted and the issues his case prejudiced by had been the amend- raised, sponte, by majority sua ment to the information. The defense mo- Court. denied, tions were and defendant was sen- pertinent Additional not facts recited in years tenced to between 1 and 15 opinion the main are abstracted from the Utah State Prison. record as follows: At time of defend- arrest, light facts, In of all of I the deem the key ant’s the in ignition was the concern the majority prosecu- which been of the that tampered had with such that missing proof the were tion the tumblers and the failed in that van lock was could be lifted out wholly of the socket. It stolen to be was unfounded. The de- stipulated at trial that defendant had been fendant necessity himself obviated the van, driving girlfriend, the and his Lori proof by further of theft stipulating that Pledger, testified that had he driven it for “missing.” the van was In obvious the con- days. It stipulated several was also that use, “missing” text of its the term was the van been had from “missing’ the U & S the tantamount to use of the term “stolen.” Company Motor parking lot for days three undisputed This is borne out the fact and registration the vehicle and certificate that defendant never challenged quan- the stipulated of title were those to the proof tum of of theft at nor does he question. van in attempt it appeal. to raise as an issue conclude, To as does majority, the that the theft,

Defendant was arrested for term therewith, “missing” does not theft charged information, connote in which case, the alleged received, he context its use retained, that in this is to or dis- posed or the sanction invited error property of another since the knowing stolen, that it had been and the believing upon or that trial court no doubt it relied the probably had been stipulation stolen.3 The proof informa- sufficient of the essen- tion further that the van opera- was tial element of theft. Daniels, Utah, U.C.A., 1953,

2. State v. 76-6-408. is to be under possession apt some ad- majority concern the I also deem the lack of kind of of criminal as to a honesty; verse consideration as to his prose- be to without substance. intent an as to he explanation if he has how from clearly presented evidence cution innocently possession came into that jury reasonably could infer which property, certainly stolen he would im- criminal possessed necessary prove by giving his situation his account That of the fol- intent. evidence consists jury. happened of how it to the (1) stipulation that the van lowing: to I now turn the actual matters defend- (2) possession of the missing; defendant’s urges upon argument basic is ant us. His van, having it for coupled with his driven failed, law, matter that the state as a to days; (3) ignition had been tam- several every doubt ele- prove reasonable with; (4) unex- pered defendant’s which ment of crime with he evidence, All of possession. such plained charged,6 allegation in & that U S circumstantial, readily gives it although proved; in Motor owned the van was not that de- rise to reasonable inference ownership showed to fact that the evidence was, knew van or fendant that the Furthermore, be in the Robertsons. de- was, depriv- stolen that he was in fact permit claims that to informa- ing the owner thereof. fendant to conform the evi- tion be amended States,4 In Barnes v. United the United prejudicial dence was error. Supreme approved the follow- States instruction: permit may properly A trial court recently property, Possession of chief, prosecution, at the close of its case in explained, if not is ordinari- satisfactorily to amend the information filed in the case ly you a circumstance from which pro- presented, conform to the evidence find, reasonably draw the inference and prejudice thereby no vided accrues light surrounding circum- infra, indicated, As defendant.7 no such stances shown evidence arose from the amended prejudice informa- case, person knew in the instant case. tion had been stolen. provision8 applicable statutory pro- say: The Court went on to vides, pertinent part, as follows: we In the case deal with receives, if he A theft commits deeply traditional common-law inference retains, or disposes For rooted our law. centuries courts stolen, it has been knowing that another juries have inference instructed an probably has been may be unex- drawn from fact of ... with a plained possession of stolen goods. thereof. owner long recognized This Court ele- has of The elements the offense thus be mentary principle recently, of law. Most 5 retain, (1) receive, as: actor must Burr, stated State v. we stated the matter another; (2) dispose property follows: property actor must has been know ... it is a fact of life one in property stolen or believe who makes of stolen stolen; explanation (3) no to how he be in must came to have been actor 1953, -43; U.C.A., 1953, 77 also 4. 412 U.S. L.Ed.2d 380 7. U.C.A. 21 see S.Ct. Rohletter, (1973). 77 17 3 State v. 108 Utah P.2d 963 Utah, see also State Potello, 40 Utah 119 P. 1023 u.C.A., 1953, 76-6 -408. Housekeeper, 6. State v. Gutheil, Utah

have a the owner of the property. CORP., MANAGEMENT SERVICES Corporation, Plaintiff and Utah subject proper- Specific ownership of the Respondent, theft, ty is not an element of the offense in the informa- although may need not conclusive- tion.9 ASSOCIATES, a Utah DEVELOPMENT ques- ly prove who owned the Corporation and Jane Does and John tion, obtained or exer- only that the accused Eight, Ap through Defendants and One proper- control over the cised unauthorized pellants. Therefore, in the instant ty of another.10 No. 16341. case, it not matter whether the van does was owned the Robertsons or U & S Supreme Court of Utah. regard, Motor. Assertions in that which 11, 1980. Sept. information, appeared prior both amendment, were and after the thus mere

surplusage, requi- and no thereon was

site.11 no assignments

There further valid proceedings, error the trial I would

affirm the judgment conviction and the

the trial court. majority Inasmuch as the

of the Court has seen fit to address issues parties,

never raised not hence court, upon by

ruled the trial only rea-

sonable disposition ap- alternative of this

peal should be to remand for new trial on

all issues rather than to set aside the

verdict and discharge the defendant.12

CROCKETT,J., dissenting concurs in the

opinion HALL, J. U.C.A., 1953, 9. Note that even a with an interest in 77-21 77 21 42. can “steal” it from another with U.C.A., 1953, -6-402(2); an interest. See 76 Lamorie, Utah, 12.See State v. 610 P.2d 342 Parker, 104 Utah 137 P.2d 626 Simmons, 10. State v.

Case Details

Case Name: State v. Murphy

Court Name: Utah Supreme Court

Date Published: Sep 9, 1980

Citation: 617 P.2d 399

Docket Number: 16412

Court Abbreviation: Utah