State v. Lamm

606 P.2d 229, 1980 Utah LEXIS 849

• Court: Utah Supreme Court
• Decided: January 16, 1980
• Docket: 15888
• Status: Published

Opinions

HALL, Justice:

Defendant appeals from a conviction of Theft by Receiving,¹ by challenging the sufficiency of the evidence.

The state presented testimony to establish the following facts. On Monday morning, September 20, 1976, it was discovered that a large welder was missing from the premises of an Alder Construction Company site. The value of the welder was in excess of $1,000.

Later that day, around noon, two employees of the construction company, Herodes and Hansen, drove a company car to a nearby Dee’s Restaurant for lunch. They testified that as they were leaving the parking lot, they saw a welder similar to the missing one in the bed of a 1971 white Ford pickup truck. They approached the truck and could see an “Alder Construction Company” logo sticker underneath the freshly painted side of the machine. They wrote down the license plate number of the truck and mentally noted the serial number of the welder. Herodes immediately crossed the street to call the sheriff while Hansen remained in the parking lot.

After what Herodes described as a five to ten minute wait, a group of men came out of the restaurant and saw the company car and Hansen. They congregated and talked for a short period of time, when suddenly one of the younger men jumped into the white pickup. He started the engine and drove away at a rapid rate of speed, spinning wheels and throwing gravel, cutting through a landscaped area, jumping the curb onto the main road headed west. The other men got into a “crew cab” truck and headed in a northerly direction. Meanwhile, Herodes ran back across the street, got into the company car and gave chase to the white pickup. Hansen remained to wait for the sheriff who then together subsequently joined in the pursuit. The white pickup was lost in traffic and the welder was never recovered.

Defendant was identified at trial as a member of the group of men observed at the restaurant. The crew cab truck was licensed to defendant and the white pickup was licensed to one Roy Cummings who testified that sometime in late August 1976 he had sold the white pickup to defendant for $800. A few weeks later, defendant went to Cummings’ home and asked him to not tell anybody who had bought the pickup. The explanation given was that defendant’s son Roy had gotten defendant into trouble. Cummings’ son, Benny, testified that he had overheard the conversation and that defendant had indicated that the trouble Roy was into involved a “hot welder.” Benny also testified that later that same afternoon Roy asked Benny for a ride to a local shopping center because “there was a welder and these guys have been chasing me all over . . .

Defense witness Lanny Tracy testified that he had given a 1966 Ford crew cab truck to defendant in July or August of 1976. He indicated that although he was not certain of the date, on September 20, 1976, he met defendant and defendant’s son, Roy, for lunch at Dee’s Restaurant. Tracy testified that after lunch he worked for fifteen or twenty minutes on the crew cab truck while it was parked in the Dee’s parking lot. Defendant’s testimony was essentially the same as that given by Mr. Tracy. He also testified that the reason he requested that Roy Cummings not identify him as the owner of the white truck was to protect his son from possible imprisonment from driving a vehicle after his license had been revoked for reckless driving.

After considering the evidence, the jury returned a verdict of guilty. Following a pre-sentence report, defendant was sentenced to an indeterminate term of one to fifteen years in the Utah State Prison.

The sole issue presented by this appeal is that of the sufficiency of the evidence. It is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses, and it is not within the prerogative of this Court to substitute its judgment for that of the fact-finder. This Court should only interfere when the evidence is so lacking and insubstantial that reasonable men could not possibly have reached a verdict beyond a reasonable doubt.²

Defendant was convicted of receiving stolen property in violation of U.C.A., 1953, 76-6-408 which provides, in part, as follows:

(1) A person commits theft if he receives, retains, or disposes of the property of another knowing that it has been stolen, or believing that it probably has been stolen, or who conceals, sells, withholds or aids in concealing, selling, or withholding any such property from the owner, knowing the property to be stolen, with a purpose to deprive the owner thereof.

The facts of the present case fall within the latter portion of this provision, i. e. concealing or aiding in the concealment of stolen property. The elements of the crime are: (1) property belonging to another has been stolen; (2) the defendant aided in' concealing this property; (3) at the time he so aided in concealing it he knew the item had been stolen; and (4) his purpose in acting was to deprive the owner thereof of possession. For a criminal conviction, the prosecution must prove beyond a reasonable doubt each element of the crime.³ This burden may be met by any combination of direct or circumstantial evidence, including reasonable inferences drawn therefrom.⁴

Applying the foregoing principles to the instant case, the evidence is sufficient to establish each of the elements of the offense. The testimony of the two employees of Alder Construction Company was sufficient to establish that property belonging to the company had been stolen. The actions of the defendant in requesting that Roy Cummings withhold from the authorities the defendant’s ownership of the white pickup truck and his false statements to the Deputy Sheriff concerning the location and use of that truck⁵ were sufficient to establish the act of aiding in the concealment of the stolen property.⁶ The testimony of Benny Cummings as to defendant’s specific knowledge that the property had been stolen was sufficient proof of that element of the offense. This testimony, when combined with the incident at Dee’s parking lot and the fact that the welder was never recovered, would all go to show that defendant sought to deprive the construction company of its property.

The evidence relied upon by the jury need not refute contrary allegations made by the defendant, as long as the jury verdict is supported by substantial evidence. The rule often applied in a circumstantial case that requires the exclusion of every reasonable hypothesis other than guilt is in reality nothing more than another manner of stating the burden of proof applicable in all criminal cases, viz., beyond a reasonable doubt. The key word in either concept is that of “reasonable.” In the instant case, the jury simply did not deem the defendant’s explanation of his actions as being “reasonable,” and the attendant facts and circumstances adequately support that conclusion.⁷

The jury verdict and the judgment of the trial court are hereby affirmed.

CROCKETT, C. J., and WILKINS and STEWART, JJ., concur.

1 . U.C.A., 1953, 76-6-408.

2 . State v. Logan, Utah, 563 P.2d 811 (1977). See also, State v. Romero, Utah, 554 P.2d 216 (1976); State v. Fort, Utah, 572 P.2d 1387 (1977); State v. Wilson, Utah, 565 P.2d 66 (1977); and State v. Erickson, Utah, 568 P.2d 750 (1977).

3 . U.C.A., 1953, 76-1-501(1).

4 . State v. John, Utah, 586 P.2d 410 (1978); State v. Sullivan, 6 Utah 2d 110, 307 P.2d 212 (1957), cert. den. 355 U.S. 848, 78 S.Ct. 74, 2 L.Ed.2d 57 (1957).

5 .Kay Clark of the Salt Lake County Sheriff’s Office who had investigated the incident, testified as follows:

I asked him (defendant) where his truck had been on that particular day, if I recall correctly. He said he didn’t know. I asked him who was driving his truck on that day. He replied he did not know. I asked him if he knew anything about the welder that was involved. He said he didn’t know anything about any welder.

6 . The term “conceal” as used in the statute is not to be interpreted in a technical sense, but rather includes all acts done which render the discovery or identification of the stolen property more difficult. See Commissioner of Public Safety v. Treadway, Mass., 368 Mass. 155, 330 N.E.2d 468 (1975); Trammell v. State, 511 S.W.2d 951 (Tex.Cr.App.1974); State v. Moynahan, 164 Conn. 560, 325 A.2d 199, cert. denied 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973).

7 . See State v. Schad, 24 Utah 2d 255, 470 P.2d 246 (1970); also, State v. John, Utah, supra footnote 4.