State v. Sample

673 S.W.2d 61, 1984 Mo. App. LEXIS 4614
CourtMissouri Court of Appeals
DecidedMay 16, 1984
DocketNo. 12980
StatusPublished
Cited by5 cases

This text of 673 S.W.2d 61 (State v. Sample) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sample, 673 S.W.2d 61, 1984 Mo. App. LEXIS 4614 (Mo. Ct. App. 1984).

Opinion

CROW, Presiding Judge.

A jury found appellant guilty of the class D felony of an attempt to commit the offense of receiving stolen property having a value of $150 or more, §§ 564.011 and 570.-080, RSMo 1978, and assessed his punishment at six months’ imprisonment in the county jail. The trial court imposed that sentence.

Appellant contends he committed no crime, inasmuch as the property he received, an Ingersoll-Rand model 2001 Redi-Ratchet rechargeable electric impact tool, was not in fact stolen, having been purchased at retail by a police detective specifically for use in the transaction from which this prosecution arose. Appellant also asserts the trial court erred in (a) denying appellant’s request for production of two pages of a police department file, (b) failing to include a definition of “substantial step” in the jury instructions, and (c) failing to grant a new trial sua sponte because the assistant prosecuting attorney improperly cross-examined appellant’s character witness.

The evidence, viewed in the light most favorable to the verdict and ignoring appellant’s evidence except where favorable to the prosecution, State v. Wood, 596 S.W.2d 394, 400[10] (Mo. banc 1980), cert. denied, 449 U.S. 876, 101 S.Ct. 221, 66 L.Ed.2d 98 (1980), discloses that in the spring of 1982, the Cape Girardeau Police Department was investigating certain employees of that city’s Public Works Department who were suspected of theft and misuse of city property and receiving stolen property. Appellant, the “shop superintendent” at the city garage, was one of the suspects.

Fred P. “Fast Freddie” Jones, a parolee from the Division of Corrections,1 was employed on a trash truck in the city’s Sanitation Department.

On April 2, 1982, Jones, at the direction of Cape Girardeau police detective William B. McHughes, met McHughes and Chief of Detectives Michael Seib at the police station. McHughes told Jones the police had information that he had stolen tools, paint and other city property and had sold it or given it away. The investigation indicated Jones was doing this for appellant and another man. McHughes explained to Jones that this might be a violation of his parole.

Jones recalled McHughes saying that he (Jones) should help in the investigation of the Public Works Department, otherwise he might get his parole revoked. Jones knew he could be sent back to prison if the police proved he had stolen property from the city garage.

Jones agreed to assist the police, and on April 7,1982, Jones, at the instance of Seib, telephoned appellant. Jones, unbeknown to appellant, made the call in Seib’s office, Seib recording the conversation on tape. Appellant received the call at the city garage.

Jones, who had known appellant several years and had sold appellant stolen goods [63]*63“numerous times,” told appellant, “Hey, my boy just came down here, they got some goodies.” Jones added, “You know, got some impact wrenches, tools, you know, hand tools, 35mm camera.” Jones asked appellant whether he was going to be interested in some of it, and appellant said he might. Appellant instructed Jones to come by appellant’s shop about 4:30 that afternoon. (Appellant, in addition to working for the City of Cape Girardeau, also operated Riverfront Auto, an automobile body shop.)

After the telephone conversation between Jones and appellant, Seib directed detective sergeant John Brown to buy a tool for use in the scheme. Brown bought the Redi-Ratchet at an auto parts store, paying $180.

Jones, who was reluctant to “burn” 2 appellant because of their long friendship, enlisted a cousin, Tommy Burnett, to offer the Redi-Ratchet to appellant.

McHughes concealed a microphone and transmitting device beneath Jones’ clothing, and Brown turned the Redi-Ratchet over to Jones. The ratchet was in the box in which it was purchased, marked with the price, $180.

Jones and Burnett then drove to Riverfront Auto in Jones’ vehicle. Seib, McHughes and other officers went along in separate vehicles, parking nearby for surveillance. McHughes was equipped with a receiver and recorder to monitor Jones’ transmitter.

Jones and Burnett waited a short time in Jones’ vehicle, then appellant appeared and the three talked “a minute or two.” The trio then entered Riverfront Auto, Burnett carrying the box containing the Redi-Ratch-et.

In appellant’s office, Jones told appellant the Redi-Ratchet was “real hot,” and Burnett told appellant “it was real hot and he had to get rid of it.” Burnett said he wanted $25 for the ratchet; appellant said he might have to rob his piggy bank as he might not have that much. After brief negotiations, they agreed on a price of $15, and appellant paid that sum to Burnett. Jones told appellant he (Jones) would bring the other items — wrenches and hand tools — down the next day. Appellant said he would take a look at them.

Before Jones and Burnett left, appellant placed his hands on Jones and felt the transmitting device. Appellant asked, “Are you wired up, boy?”

Jones replied, “No, I hurt my back.”

As Jones and Burnett were departing, appellant asked Jones if Burnett was “all right.” Jones answered that Burnett had never done him wrong in all the years Jones had been doing business with him, and that Burnett was all right.

Jones and Burnett then drove away, leaving the Redi-Ratchet with appellant. The police paid Burnett $100 for his services; Burnett gave half to Jones.

At trial, the tape recordings of Jones’ phone call to appellant and the conversation between Jones, Burnett and appellant at Riverfront Auto were played for the jury-

We deal first with appellant’s contention that he was not guilty of an attempt to receive stolen property because the Redi-Ratchet was never stolen.

This argument, the so-called “legal impossibility” defense, was rejected in State v. Hunt, 651 S.W.2d 587 (Mo.App.1983), a case of first impression in Missouri. We agree with the rationale in Hunt, and need not repeat it here. Hunt upheld a conviction of attempting to receive stolen property, on facts indistinguishable from those before us. Appellant’s contention is denied.

We next consider appellant’s complaint that the trial court erred in failing to include a definition of the term “substantial step” in its instructions to the jury.

The verdict directing instruction (instruc[64]*64tion 5 at trial)3 was based on MAI-CR 2d 18.02, the pattern instruction on attempts approved by the Supreme Court of Missouri en banc and made effective January 1, 1979. MAI-CR 2d p. XIII.

Note on Use 3 under MAI-CR 2d 18.02 provides, in pertinent part:

“Whether the object crime is defined or not, if MAI-CR 2.06 is given, the following term must be defined in a separate instruction, whether requested or not:
‘substantial step.’ ”4

There is, of course, no pattern instruction numbered 2.06 in MAI-CR 2d, and there was none at the time of appellant’s trial. Consequently, Note on Use 3, as written, did not then, and does not now, require the trial court to define “substantial step” for the jury.

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Related

Snow v. Snow
24 S.W.3d 668 (Court of Appeals of Kentucky, 2000)
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701 S.W.2d 420 (Supreme Court of Missouri, 1985)

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Bluebook (online)
673 S.W.2d 61, 1984 Mo. App. LEXIS 4614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sample-moctapp-1984.