State v. Powell

672 P.2d 96, 1983 Utah LEXIS 1186

• Court: Utah Supreme Court
• Decided: October 20, 1983
• Docket: No. 19068
• Status: Published

Opinion

PER CURIAM:

Defendant was convicted of attempted theft by receiving¹ two horses which proved not to have been stolen, but which were employed in what has come to be known as a “sting” operation. The defendant urges on appeal that the offense could not be committed unless the subject property was shown to have in fact been stolen.

U.C.A., 1953, § 76-4-101 provides, in part, as follows:

(3) No defense to the offense of attempt shall arise:

(a) ...

(b) Due to factual or legal impossibility if the offense could have been committed had the attendant circumstances been as the actor believed them to be.

To be guilty of attempted theft by receiving, the attendant circumstances need only be as the actor believed them to be. In State v. Sommers, Utah, 569 P.2d 1110 (1977), we made it clear that the actual theft of the property is not an essential element of the offense of attempted theft by receiving. The opinion negated “impossibility” as a defense as stated as follows:

Thus to exculpate defendant solely on the ground the television set he purchased was not, in fact, stolen property would shock the common sense of justice. The defense of impossibility is not a fundamental right .... His [defendant’s] conviction was predicated on proof of his criminal purpose implemented by an overt act strongly corroborative of such purpose.²

The Sommers holding is controlling. The verdict and judgment in the instant case are affirmed.

STEWART, J., concurs in the result.

1 . In violation of U.C.A., 1953, §§ 76-6408 and 764-101.

2 . For a sampling of comparable rulings by sister states, see State v. Davidson, 20 Wash.App. 893, 584 P.2d 401 (1978); Darr v. People, 193 Colo. 445, 568 P.2d 32 (1977); Darnell v. State, 92 Nev. 680, 558 P.2d 624 (1976); and People v. Rojas, 55 Cal.2d 252, 10 Cal.Rptr. 465, 358 P.2d 921 (1961).