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August 4, 1983


From the Circuit Court of Greene County; Criminal Appeal; Judge Max E. Bacon.

Motion for Rehearing Overruled, Transfer Denied August 22, 1983. Application Denied October 18, 1983.

Before Maus, P.j., Hogan, Prewitt, JJ.

The opinion of the court was delivered by: Hogan

A jury has found defendant Pamela Sue Hurd guilty of disposing of stolen property having a value of more than $150, as defined and denounced by § 570.080.3, RSMo 1978. *fn1 Her punishment was assessed at imprisonment for a term of four years, as authorized by former § 558.011.1(3). She appeals.

Having had a verdict, the State is entitled to the most favorable view of the evidence and all reasonable inferences to be drawn therefrom, and to have this court disregard defendant's evidence except as it supports the verdict. State v. Jones, 594 S.W.2d 932, 934-935[1][2] (Mo. 1980). The point of sufficiency is not specifically raised, but in light of the ruling in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), it will be noticed briefly sua sponte. Preliminarily, we note that Instruction No. 5, the verdict-director, properly advised the jury of defendant's accessorial liability as an active aider.

The State had evidence showing that on July 15, 1981, the residence of one Forest Lynn Fisher was burglarized. Mr. Fisher, who lived at Morrisville in Polk County, testified that eleven firearms were taken. We are particularly concerned with three of these "guns": 1) a model 31 Smith and Wesson .32 caliber revolver with a three-inch barrel; 2) a .357 Colt Magnum revolver with a six-inch barrel, and 3) a Spanish-made AYA Matador sixteen-gauge double-barrelled shotgun, modified so as to fire a "tight" pattern from one barrel and a broader pattern from the other. Mr. Fisher testified that the value of these three firearms was about $875. The record does not indicate who stole the "guns."

Rodney Burk was an undercover officer employed by the Springfield Police Department. On July 19 he met the defendant on the parking lot at a south side bar. Della Campbell, an informant, introduced Burk to the defendant; thereafter Burk and the defendant conversed for about thirty minutes. Burk told the defendant he was interested in buying some stolen guns. Defendant advised Burk that she was "cool," a "burglar and a thief," and "could get whatever [Burk wanted]."

The following day, the informant called officer Burk and the defendant "came on the line." Mrs. Hurd said she had some "guns" for sale, specifically one shotgun, two pistols and two .22 caliber rifles. She offered to sell the whole lot for $350. Burk thereafter made another call to ask the defendant if she had the firearms in possession; defendant did not, but asked Burk to come to an address in northwest Springfield. Burk specifically told the defendant he "didn't want to deal with stolen goods in front of any strange people"; defendant replied "it would be cool," because "Bob" would bring the firearms and leave them in an automobile, and defendant and Burk could ride down the road while Burk inspected the firearms.

Burk did as he was told, found a residence at the designated address, and entered the house at defendant's invitation. He was introduced to an "older male" whom defendant called "Bob." The record shows that "Bob" was in fact George Robert Swett, who had pled guilty to receiving stolen property as a participant in this offense. Burk's testimony was that Bob brought the "guns" to the north side residence, explaining that he had brought only three firearms, rather than five.

Burk inspected the two pistols and the shotgun we have described. Defendant had offered to sell the pistols and the shotgun for $350, representing that the Colt .357 alone was worth $400. Burk offered $250 for the lot. Defendant indicated it would be necessary for her to obtain permission to sell the firearms at that price and placed a phone call.

At this point, Burk either asked "Bob" or "Bob" volunteered, in the defendant's presence, something further about the "guns." According to Burk, "Bob said that the guns weren't too hot [--] they'd been taken around Marshfield in a burglary."

The defendant received permission to sell the firearms for $250; thereupon, the sale was consummated. Mrs. Hurd gave part of the money to "Bob" and retained part as her commission. Upon trial, Mr. Fisher identified the three firearms sold by the defendant as being part of the lot stolen from his residence on July 15.

Section 570.080, "receiving stolen property," obviously denounces several offenses disjunctively but in this case, it was incumbent upon the State to present evidence showing beyond a reasonable doubt: 1) that the property was in fact stolen; 2) that the defendant exercised dominion over the property by disposing of it; 3) that defendant knew or believed the property had been stolen, and 4) that the defendant intended to deprive the owner of a lawful interest in the property. See MAI-CR.2d 24.10, outlining the elements of the State's case.

The sufficiency of the evidence to establish elements one, two and four is beyond cavil; the troublesome problem in any case of this kind is whether the mens rea of "culpability" element has been established, and our sua sponte, due process review is directed to the sufficiency of the evidence bearing on that element of the offense. There are at least three general approaches to the type of culpable knowledge required; these theories are known to most lawyers, and need not be repeated here. *fn2 In this case, the jury was required to find that defendant "knew or believed" the firearms had been stolen. It goes almost without saying that it is often difficult to make direct and positive proof of the accused's knowledge that the goods were stolen, and this ...

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