Estep v. State

1977 OK CR 137, 562 P.2d 905
CourtCourt of Criminal Appeals of Oklahoma
DecidedApril 5, 1977
DocketNo. F-76-666
StatusPublished

This text of 1977 OK CR 137 (Estep v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estep v. State, 1977 OK CR 137, 562 P.2d 905 (Okla. Ct. App. 1977).

Opinion

OPINION

BUSSEY, Presiding Judge:

The appellant, Jerry Austin Estep, hereinafter referred to as defendant, was charged, tried and convicted in District Court, Tulsa County, Oklahoma, for Knowingly Concealing Embezzled Property, under 21 O.S.1971, § 1713. After a trial by jury the defendant was sentenced to a term of two (2) years’ imprisonment. He appeals.

Ferrell Kirtley, a salesman at Sears and Roebuck in Tulsa, testified he was charged with embezzlement along with Wayne Pad-gett and Pete Nicklau. He further testified that in November, 1974, he had entered into a scheme with Padgett and Nicklau to steal merchandise — large appliances, such as televisions, refrigerators, washers, dryers, and dishwashers — from Sears. On certain Wednesdays he, along with Padgett and Nicklau, would remove merchandise from the Sears’ warehouse and load them on Padgett’s truck. He would then go to a restaurant in Tulsa and receive payment for the articles, and while at the restaurant he was introduced to the defendant by Pad-gett and Nicklau. On November 20, 1974, he loaded a washer and dryer onto a blue pickup truck owned by Padgett. He stated that the washer and dryer had not been [907]*907lawfully sold. Later that afternoon he said Padgett returned to Sears to take a color television and refrigerator.

Ronald Marsh, security manager for Sears, said on November 19, 1974, he had made an inventory of the articles under the control of Kirtley by recording the model number and serial number of the major appliances in the store at that time. He said he later observed Kirtley and Nicklau load a clothes dryer and washer onto a pickup. This process was repeated a second time that day, and again a third time about two hours later when he saw Padgett come out of the store with a portable color television set. Marsh said he then went to the showroom floor and checked the items against his original inventory and was unable to find any sales transactions concerning the missing items.

Caroll Gatlin, working at Sears as an off-duty police officer, stated he assisted Marsh in making the inventory described above, and while Marsh was engaged in the surveillance mentioned above, he went to the Sundowner Apartment complex in Tulsa with Officer Jim Aud and there arrested Padgett for the offense of possession of stolen property.

Officer David Harrison said he and other officers were assigned to go to Padgett’s residence in Tulsa, during the evening of November 20, 1974. At the time of his arrival there was a red pickup parked in the drive way. He said about 9:00 p. m. he observed two females in the garage attempting to load a large, light colored metallic sounding object onto the pickup. A few moments later he said he saw a car pull up to the residence at which time two males emerged and loaded another large, light colored metallic sounding object onto the pickup. The two males then started to drive the pickup away at which time the officers blocked the driveway and arrested the occupants of the pickup. Harrison then identified the defendant, Estep, and co-defendant Goodson as the two individuals arrested that night.

Officer Jim Aud stated the defendant told him “that stuff had to be taken out of there” because Wayne Padgett had been arrested.

The first witness called on behalf of the defense was Louise Padgett. She testified that she was the wife of Wayne Padgett and related that on November 20, 1974, she observed Pete Nicklau unloading a washing machine, dryer and television set in her garage. She said she and her sister loaded one of the appliances onto the pickup and then asked the defendant and Goodson to come to the garage where the defendant helped load the washer into the pickup. She testified she told the two defendants that her husband and Nicklau had been arrested, and that Pete had brought the appliances to her garage and because she did not want them there, she was going to take them back to him. She then stated she asked Goodson to move the pickup forward so she could close the door and while he was doing that, he and the defendant were arrested.

Co-defendant Goodson corroborated the testimony of Mrs. Padgett. He also denied any knowledge that the goods were stolen.

For his first assignment of error the defendant contends the first paragraph of 21 O.S.1971, § 1713 is unconstitutional in that it is vague and uncertain as it applies to those who conceal stolen property as opposed to those who receive it. He contends one might read the statute as not requiring knowledge that the property is stolen by one who conceals such property while requiring such knowledge by one who buys or receives it.

With this contention we cannot agree. 21 O.S.1971, § 1713(1) reads as follows:

“Every person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever that has been stolen, embezzled, obtained by false pretense, or robbery, knowing or having reasonable cause to believe the same to have been stolen, embezzled, obtained by false pretense, or robbery or who conceals, withholds, or aids in concealing or. withholding such [908]*908property from the owner, is punishable by imprisonment in the penitentiary not to exceed five (5) years, or in the county jail not to exceed one (1) year, or by a fine not to exceed Five Hundred Dollars ($500.00) or by both such fine and imprisonment.”

When viewed in its entirety the statute is not vague. Obviously, in viewing the statute we should inquire into the legislative intent. Ex Parte Higgs, 97 Okl.Cr. 338, 263 P.2d 752 (1954). When read as a whole the elements of knowing or having a reasonable cause to believe the property is stolen must also apply to one who conceals or aids in concealing the property from the owner. We also find that the constitutional requirement of definiteness is not violated by this statute in that it does give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by law. Turner v. State, Okl.Cr., 549 P.2d 1346 (1976). We also note that in its Instruction No. 4 the trial court instructed the jury on the statute, and in Instruction No. 7 on “knowingly”:

“An act is done ‘knowingly’ if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason. Intent to withhold or conceal must be proved beyond a reasonable doubt.” (Emphasis added),

and while these instructions are not a model to be followed in the future they sufficiently apprise the jury that the defendant must knowingly and intentionally conceal the embezzled property.

For his next assignment of error the defendant asserts that the trial court erred in overruling his motion to suppress the evidence. More specifically, he argues that the arresting officers did not have sufficient probable cause to make the arrest and therefor any evidence obtained would be inadmissible. We note that the trial court properly conducted an “in camera” hearing on defendant’s motion and made a finding of fact that there was sufficient probable cause for the officer to make the arrest.

The authority by which an officer may arrest a person without a warrant is provided under 22 O.S.Supp.1975, § 196. The specific provision pertaining to this case follows:

“A peace officer may, without a warrant, arrest a person:

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Related

Ex Parte Higgs
1953 OK CR 160 (Court of Criminal Appeals of Oklahoma, 1953)
Lauhoff v. State
1973 OK CR 127 (Court of Criminal Appeals of Oklahoma, 1973)
Bryant v. State
1974 OK CR 64 (Court of Criminal Appeals of Oklahoma, 1974)
Turner v. State
1976 OK CR 108 (Court of Criminal Appeals of Oklahoma, 1976)
Satterlee v. State
1976 OK CR 88 (Court of Criminal Appeals of Oklahoma, 1976)
Russell v. State
1967 OK CR 189 (Court of Criminal Appeals of Oklahoma, 1967)
Moreau v. State
1975 OK CR 14 (Court of Criminal Appeals of Oklahoma, 1975)
Murphy v. State
1944 OK CR 54 (Court of Criminal Appeals of Oklahoma, 1944)
Lewis v. State
1975 OK CR 185 (Court of Criminal Appeals of Oklahoma, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
1977 OK CR 137, 562 P.2d 905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estep-v-state-oklacrimapp-1977.