Rich v. State

49 So. 3d 734, 2009 Ala. Crim. App. LEXIS 165, 2009 WL 4981035
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 18, 2009
DocketCR-08-1078
StatusPublished
Cited by1 cases

This text of 49 So. 3d 734 (Rich v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rich v. State, 49 So. 3d 734, 2009 Ala. Crim. App. LEXIS 165, 2009 WL 4981035 (Ala. Ct. App. 2009).

Opinions

PER CURIAM.

The appellant, Jerry Wade Rich, was convicted of receiving stolen property in the second degree, a violation of § 13A-8-18, Ala.Code 1975. He was sentenced to 10 years’ imprisonment; that sentence was split, and he was ordered to serve one year followed by two years on probation. This appeal followed.

The State’s evidence tended to show the following. In October 2007, Rick Freese, a loss prevention investigator -with Target Corporation, met with members of the Trussville Police Department to discuss conducting a sting operation at Jim’s Pawn Shop in Trussville. Target agreed to furnish merchandise to the police who would, in turn, attempt to pawn that merchandise at Jim’s Pawn Shop. In October 2007, Scott Salser, an undercover officer with the Birmingham Police Department, sold three iPods1 that he represented had been stolen, to Rich, an employee of Jim’s Pawn Shop. Rich confessed to Detective Todd Posey of the Trussville Police Department that he had falsely recorded the serial numbers on two of the iPods and that the pawnshop often received stolen property.

Rich argues that the evidence was insufficient to sustain his conviction for receiving stolen property because, he argues, the State failed to prove that the property was “stolen.” He relies on the Alabama Supreme Court’s decisions in Ex parte Walls, 711 So.2d 490 (Ala.1997), and Farzley v. State, 281 Ala. 60, 163 So. 394 (1935).

In 1997, the Alabama Supreme Court in Ex parte Walls, addressed whether the statute making it a criminal offense to receive stolen property would apply had the property never been stolen or had it been recovered from police and lost its [736]*736“stolen status.” The Supreme Court stated:

“It is undisputed that eight of the radios supplied to the police by Baker and later purchased by Walls had never been stolen. Therefore, under Farzley [v. State, 281 Ala. 60, 163 So. 394 (1935) ], they cannot be the subject of the offense of receiving stolen property. ‘[I]f as a matter of fact [the goods] had not been stolen, there could be no conviction, no matter how strong the evidence tending to show that a defendant had reasonable grounds for believing they were stolen.’ Smitherman v. State, 340 So.2d 896, 900 (Ala.Cr.App.1976), interpreting Farzley. In other words, a defendant may possess the requisite guilty mind, but if the property is not actually stolen property, then a circumstance that is unknown to him prevents him from committing the completed act prohibited by statute, i.e., the offense of receiving stolen property.
“The state nonetheless urges that we should allow a conviction for receiving stolen property under § 13A-8-16 whenever a defendant has reasonable grounds to believe that property received has been stolen, without respect to whether the property received had been stolen in fact. The state refers us to cases from other jurisdictions in which courts have held that a defendant may be criminally liable for receiving, notwithstanding that the property received was not in fact stolen property. See State v. Bujan, 274 N.J.Super. 132, 643 A.2d 628 (App.Div.1994); State v. Sweeney, 701 S.W.2d 420 (Mo.1985); State v. Pappas, 705 P.2d 1169 (Utah 1985). These cases demonstrate that some states have eliminated from them statutory ‘receiving’ offense the requirement that the property received have been stolen in fact. While our legislature could similarly eliminate this requirement as an element of the completed ‘receiving’ offense in this state, we conclude that to adopt such an interpretation of § 13A-8-16, as that section presently reads, would be directly contrary to the statutory language.
“As noted previously, § 13A-8-16(a) states that ‘[a] person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen.’ (Emphasis added.) Thus, the state would have us read out of the statute the express requirement that the property received, retained, or disposed of by the defendant have been stolen. This we decline to do.
“ ‘ “A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
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“ ‘ “One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, [257 Ala. 502, 60 So.2d 202 (1952),] citing Young’s Case, 58 Ala. 358 (1877).” ’
“Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (emphasis omitted).”

711 So.2d at 494. The Supreme Court relied on Farzley to reach its decision in Walls.

[737]*737The State argues that the Alabama Supreme Court’s decision in Walls is no longer good law because, it asserts, the theft statute'was amended after Walls was released. It contends that § 13A-8-2(3), which was added to the theft statute in 2003, enables law enforcement to carry out sting operations such as one in this case and broadened the definition of theft in the receiving-stolen-property statute.

Rich was indicted for receiving stolen property in the second degree. The indictment reads as follows:

“JERRY WADE RICH, whose name is to the grand jury otherwise unknown, did, intentionally receive, retain, or dispose of stolen property, to-wit: one Ipod of the value of $249.99; one Ipod of the value of $199.99 and one Ipod of the value of $59.98, the property of CITY OF TRUSSVILLE POLICE DEPARTMENT, A MUNICIPAL CORPORATION knowing that it was stolen or having reasonable grounds to believe it had been stolen and not having the intent to restore it to its owner, in violation of Section 13A-8-18 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(C. 16) (capitalization original).

Section 13A-8-16, Ala.Code 1975, defines the crime of receiving stolen property:

“(a) A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.”

Section 13A-8-18(a)(l), Ala.Code 1975, defines receiving stolen property in the second degree as receiving stolen property that exceeds “five hundred dollars ($500) in value but does not exceed two thousand five hundred dollars ($2,500) in value.” “Stolen” is defined in § 13A-8-l(12), Ala. Code. 1975, as: “[ojbtained by theft, theft by appropriating lost property, robbery, or extortion.”

When examining the relevant statutes, we must keep in mind the following principles of statutory construction:

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Related

Rich v. State
49 So. 3d 734 (Court of Criminal Appeals of Alabama, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
49 So. 3d 734, 2009 Ala. Crim. App. LEXIS 165, 2009 WL 4981035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rich-v-state-alacrimapp-2009.