State v. Russell

397 So. 2d 1319
CourtSupreme Court of Louisiana
DecidedApril 6, 1981
Docket80-KA-2142
StatusPublished
Cited by34 cases

This text of 397 So. 2d 1319 (State v. Russell) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Russell, 397 So. 2d 1319 (La. 1981).

Opinion

397 So.2d 1319 (1981)

STATE of Louisiana
v.
Doug RUSSELL and Oscar Prock.

No. 80-KA-2142.

Supreme Court of Louisiana.

April 6, 1981.
Rehearings Denied May 18, 1981.

*1321 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Abbott J. Reeves, William W. Hall, Kenneth Sanders, Asst. Dist. Attys., for plaintiff-appellee.

W. Glenn Burns, Stephen B. Murray, Murray, Murray, Ellis, Braden & Landry, James H. Looney, New Orleans, for defendants-appellants.

CHEHARDY, Justice Ad Hoc.[1]

Defendants, Doug Russell and Oscar Prock, and four others were charged by bill of information on April 13, 1978, with receiving stolen things, a violation of La.R.S. 14:69. Though the bill of information charged five counts, these defendants were charged only with count number one. Defendants were tried jointly before the judge alone and were found guilty as charged on May 15, 1979. On May 23, 1979, defendant Prock was sentenced to imprisonment at hard labor for a term of six years. Defendant Russell was sentenced on June 7, 1979, to three and one-half years at hard labor. Russell appeals his conviction on the basis of five assignments of error and Prock his conviction and sentence on eight assigned errors.

Defendants were arrested after they participated in a "sting" operation conducted in Jefferson Parish. The defendants participated in the "sale" of a Ford dump truck and a Case bulldozer to undercover agents on August 24, 1977. The owner of the dump truck was called and testified that the truck "sold" by the defendants to the undercover agents was positively his and had been stolen from his place of business in Nashville, Tennessee, in August of 1977.

Detective John Morse of the New Orleans Police Department, and a member of the Metropolitan Crime Strike Force conducting the undercover fencing operation in a Jefferson Parish, Louisiana, warehouse, expressed a willingness to purchase the Ford dump truck and Case bulldozer, after being advised of their availability for sale.

The record discloses that subsequently on August 24, 1977, defendant Doug Russell arrived by air in Jefferson Parish and was met by Detective Morse. Officer Morse testified that he had been contacted by unnamed individuals in Tennessee to meet the defendant Russell and take him to the "store" to negotiate the sale. Russell and Morse than drove to a gravel lot near Causeway Boulevard and met defendant Prock and other individuals who had the truck with the bulldozer on its bed. All the men then went to the Jefferson Parish warehouse where the strike force was conducting its undercover fencing operation. Eventually defendants agreed to sell the truck and bulldozer for $4,500.00 and the sale was consummated. All five defendants were present at this sale of the property.

Officer Morse also testified that prior to the day of the sale, he had spoken to one of the men involved and learned that they were afraid to cross the Louisiana/Mississippi state line with the truck and bulldozer. After making arrangements with the Mississippi and Louisiana State Police, the witness contacted one of the men and assured them that a bribe of weigh station attendants would allow them to make the crossing safely. All the transactions at the warehouse in the phony store were recorded on video tape and were introduced at trial. The defendants did not take the stand and presented no evidence on their behalf.

Defendant Russell by assignment of errors numbers one and two and defendant Prock by assignment of errors numbers one and six argues that the trial court committed error in denying their motion to quash *1322 based on alleged lack of jurisdiction and venue. Defendants contend that, as required by La.R.S. 14:69, they never procured, received or concealed anything in Jefferson Parish and argue in support of this contention that the record reveals the truck and bulldozer were stolen in Tennessee and procured there without receipt or concealment of either vehicle in Jefferson.

La.R.S. 14:69 provides in pertinent part:
"Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses."

In State v. Crum, 255 La. 60, 229 So.2d 700 (1969), the Court re-examined its decision in State v. Ellerbe, 217 La. 639, 47 So.2d 30 (1950), and clarified the definition of concealment given in that case. Noting one of the cases cited in Ellerbe, the Court stated that the word "conceal" is not to be given its literal construction limited to hiding. It further explained that concealment may be found where the stolen property was handled in such a manner that would throw the owner off his guard in his search for it:

"A determination of whether stolen property is concealed depends upon the facts of the particular case as they affect the ability of the owner to search for and find it. `Concealing' such property includes hiding, secreting, and keeping it from sight, but also includes conduct which will assist the possessor in converting the property to his own use and enjoyment or which may prevent or hinder its discovery by the owner. See 45 Am. Jur., Receiving Stolen Property, § 3; 76 C.J.S. Receiving Stolen Goods § 7; 2 Brill, Cyclopedia of Criminal Law, § 921; 2 Wharton's Criminal Law and Procedure, § 570 (Anderson's ed.). The commingling of a stolen automobile with other vehicles on the public thoroughfares of a city foreign to and removed from the owner is an effective hinderance to the owner's discovery of it." 229 So.2d at 701.

It was then concluded that the removal of the stolen automobile in that case from Mississippi to Louisiana, and particularly to populous New Orleans, and its use for the defendants' own benefit and purposes "were calculated to hinder or prevent the owner's discovery and recovery of it, and constituted `concealing' within the statute."

In the instant case, the record reveals that the dump truck, stolen in Tennessee, was transported interstate to Louisiana and brought to Jefferson Parish. While there was no evidence that the truck was hidden or otherwise concealed from public view, it can be seen as in State v. Crum, supra, that the defendants handled the truck in such a way as to assist in the conversion of it to their own use and, especially in light of evidence that they performed some alterations on the vehicle, hindered its discovery by its real owner. Since this concealment clearly occurred in Jefferson Parish, prosecution of this charge in that parish is correct. Accordingly, the trial judge's denial of the motions to quash and motions for acquittal is proper and this assignment is without merit.

Defendant Russell by assignment of error number three and defendant Prock by assignment of error number four assert that the trial court erred in denying their motions for acquittal which had been based on an allegation of insufficiency of evidence as to essential elements of the offense.

Defendants urge that there was no evidence the property involved was stolen or that they were aware of its being stolen. Defendants also assert that since the bill of information describes a 1977 Ford dump truck, and the one "sold" to the agents was a 1974 model, the state failed to prove that they had committed the charged offense.

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Bluebook (online)
397 So. 2d 1319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-russell-la-1981.