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97.3 Receiving/Possession Of Stolen Property: Miscellaneous Defenses And Defense Theories

    97.3.1 Receiving/Possession Of Stolen Property: Silence And Failure To Act Not Sufficient
    97.3.2 Receiving/Possession Of Stolen Property: Touching Or Moving Of Stolen Property Not Sufficient
    97.3.3 Receiving/Possession Of Stolen Property: Obtaining Property For Less Than True Value Not Sufficient
    97.3.4 Statute Of Limitations Defense To Receiving/Possession Of Stolen Property: Not A Continuing Offense
    97.3.5 Receiving/Possession Of Stolen Property: Defense Theory That Property Has Lost Its Stolen Character
    97.3.6 Receiving/Possession Of Stolen Property: Defense Theory That Property Was Not "Stolen"
    97.3.7 Defense Theory That Property Was Not Stolen: "Reasonable Cause To Believe" Instruction Improper
    97.3.8 Receiving/Possession Of Stolen Property: Defense Theory That Passenger In Stolen Car Is Not Guilty As Receiver
    97.3.9 Defense Theory That Defendant May Not Be Convicted Of Both Theft And Receiving Stolen Property
    97.3.10 Receiving/Possession Of Stolen Property: Momentary Or Temporary Possession As Defense Theory
    97.3.11 Receiving/Possession Of Stolen Property: Negation Of Knowledge Element By Intoxication Or Mental Impairment
    97.3.12 Defense Theory That Specification Of Person From Whom Stolen Property Was Received Is Required Under Due Process/Notice Principles
    97.3.13 Receiving Or Possession Of Stolen Property: Additional Defenses And Defense Theories

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    See FORECITE National™ 251.6.3 [No Legal Duty To Prevent Another From Committing A Crime (Misprison Not An Offense)].

    See also generally FORECITE National™ 33.2.1 [Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation].

    See also generally FORECITE National™ 33.5.2 [Unexplained Possession Of Stolen Property Not Alone Sufficient To Sustain Finding Of Theft Or Burglary].

    See also generally FORECITE National™ 97.3.2 [Receiving/Possession Of Stolen Property: Touching Or Moving Of Stolen Property Not Sufficient].

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without an explanatory instruction the jury may erroneously assume that mere proximity to or touching of stolen property is sufficient to convict the defendant of receiving or possession of stolen property.

POINTS AND AUTHORITIES: Mere Presence: See FORECITE National™ 251.6.1 [Mere Presence And No Legal Duty To Act]; see also State v. Mootispaw (OH 1996) 674 NE2d 1222, 1224 [mere presence at scene or subsequent physical proximity to stolen item is not sufficient to allow case to proceed to jury].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Silence And Failure To Act: See FORECITE National™ 251.6.3 [No Legal Duty To Prevent Another From Committing A Crime (Misprison Not An Offense)]; see also People v. Luna (CA 1956) 140 CA2d 662, 664 [295 P2d 457] [a person who stands by and watches an assault, and even approves of it, is a mere bystander, and not an accessory to the assault]; 54 Harv.L.Rev. 506 [Common Law Offense of Misprision of Felony Held Not Part of Modern Criminal Law].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

Touching Or Moving Of Stolen Property Not Sufficient: See FORECITE National™ 33.4.8 [Possession Of Recently Stolen Property: Defense Theory That Prosecution H51as Not Proven That Possession Was Exclusive]; see also FORECITE National™ 56.2.12 [Possession: Mere Presence Or Knowledge Not Sufficient].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: See also FORECITE National™ 64.2.1 [Accomplice Liability: Mere Presence As Defense Theory -- Right To Instruction On Request] for instruction relating this principle to accomplice liability in general.

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

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RATIONALE: There may be reasonable inferences, consistent with innocence, that may be drawn from the purchase of property for less that its true value. Therefore, the jury should not be permitted to speculate that the defendant knew the property was stolen solely from the fact that it was purchased for less than its true value.

POINTS AND AUTHORITIES: In prosecution for buying and receiving an electric hammer and attachments thereto, the jury was instructed not to convict defendant solely on the basis of his obtaining them for less than their true value.  (Reaves v. Commonwealth (VA 1951) 65 SE2d 559, 563.)

   See FORECITE National™ 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Conflicting Inferences That Are In A State Of Equipoise].

    See also FORECITE National™ 97.5 [Receiving/Possession Of Stolen Property: Innocent Intent Defense].

    See also FORECITE National™ 97.5.3 [Receiving Stolen Property: Innocent Intent Defense -- Factors To Consider In Deciding Whether Defendant Knew The Property Was Stolen].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

    You many not conclude that the defendant knew the goods were stolen from the mere fact that [he] [she] obtained them at less than their true value.

[See generally Reaves v. Commonwealth (VA 1951) 65 SE2d 559, 563.]

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PRACTICE NOTE: As a matter of policy, if theft is treated as a continuing offense, prosecutions could be brought years after the original taking and would involve stale evidence. (See State v. Harrison (IA 1997) 561 NW2d 28, 30.) Such prosecutions would "'put defendants in the untenable position of not being able to obtain evidence for a proper defense.' [Citations.]" (Id. at 29)

    Some jurisdictions have reached a contrary conclusion as to possession of stolen property. (See United States v. Fleetwood (DC 1980) 489 FSupp 129, 131-32 [possession of stolen property continues until the last day all elements of the offense were present]; State v. Reeves (AR 1979) 574 SW2d 647, 649 [retaining stolen property is a continuing offense]; State v. Temple (HI 1982) 650 P2d 1358, 1362 [theft by receiving, retaining, disposing of stolen property is a continuing crime]; State v. Lawrence (MN 1981) 312 NW2d 251, 253 [concealing or possessing stolen goods is a continuing offense for the purpose of the statute of limitations]; Commonwealth v. Farrar (PA 1979) 413 A2d 1094, 1098 [retaining or disposing of stolen property is a continuing offense]; State v. Lodermeier (SD 1992) 481 NW2d 614, 620-21 [receiving, retaining, and possession of property with an altered or removed serial number are crimes of continuing offenses].)

    However, other jurisdictions support the view that such offenses should not be continuing. (See People v. Kimbro (IL 1989) 538 NE2d 826, 828 [statute of limitations applicable to theft by exerting unauthorized control over property begins to run upon original taking of property]; State v. Gainer (KS 1980) 608 P2d 968, 971 [exerting unauthorized control over stolen property not a continuing offense]; State v. Mullin (MT 1994) 886 P2d 376, 378 [felony theft is not a continuing offense]; State v. Nuss (NE 1990) 454 NW2d 482, 487 [offense of theft by receiving is not continuing offense].)

    Moreover, as the U.S. Supreme Court noted in U.S. v. Toussie (1970) 397 US 112, 115 [90 SCt 858; 25 LEd2d 156]), criminal limitations statutes are to be liberally interpreted in favor of repose and the doctrine of continuing offenses should be applied in only limited circumstances.

NOTE: Modern codes use the terms "receive, retain or dispose" in describing liability with respect to stolen property. "This wording subjects to liability one who received stolen property without knowledge of its stolen character but who, on later learning the truth, hides it from its owner or otherwise refuses to deliver it up." (LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.01(b).) Hence, the "retains" language raises the additional question of whether the offense is a continuing one which may be relevant to questions regarding subsequent aiders and abettors. (See State v. Nuss (NE 1990) 454 NW2d 482, 483-85.)

Annotation, Possession Of Stolen Property As Continuing Offense, 24 ALR5th 132.

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "...[O]ne cannot be convicted of theft by obtaining control over stolen property when actual physical possession of the stolen property has been recovered by the owner or by law enforcement officers as agents for the owner, before delivery of the property to the accused." (PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 59.01-A [Crimes Against Property-Theft-Knowledge Property Stolen] comment p. 336 (Kansas Judicial Council, 3rd ed. 1999); see also State v. Sterling (KS 1982) 640 P2d 1264, 1265.) Hence, property which was originally stolen but has "lost its stolen taint" will not support a conviction for receiving stolen property. (OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-111, comment [Receiving-Elements] p. 352 (Oklahoma Center for Criminal Justice, 2nd ed. 1996); see also Felker v. State (AR 1973) 492 SW2d 442, 444-45; State v. Digiulio (AZ 1992) 835 P2d 488, 491 [recovery of property by authorized persons, such as police, strips it of its stolen character and precludes trafficking conviction based on its subsequent receipt or possession]; People v. Zarborski (NY 1983) 452 NE2d 1255, 1257; Booth v. State (OK 1964) 398 P2d 863, 867; U.S. v. Cohen (D NJ 1921) 274 F 596, 599 [where the actual physical possession of stolen property has been recovered by the owner or his agent, its character as stolen property is lost, and its subsequent delivery to the defendant by the owner or agent for the purpose of entrapping the defendant as the receiver of stolen goods, does not establish the crime]; State v. Hageman (NC 1982) 296 SE2d 433, 439 [when stolen property is recovered, it loses its character or status as "stolen property" and will not support conviction for receiving stolen goods].)

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

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RATIONALE: Because an element of receiving stolen property is that the property actually be stolen, the defendant may not be convicted of such offense if the property was, in fact, not stolen.

POINTS AND AUTHORITIES: See U.S. v. Golomb (2nd Cir. 1987) 811 F2d 787, 792; see also People v. McFarland (NY 1992) 582 NYS2d 324, 325; State v. Godsey (WI 1956) 75 NW2d 572, 573; Oosterwik v. State (WI 1943) 8 NW2d 346, 349; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1481 [Receiving Stolen Property] (University of Wisconsin Law School, 2000).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

NOTE: Since impossibility normally is not a defense attempt crimes, the defendant may be guilty of attempted receiving stolen property even though the property was not actually stolen.

    See also FORECITE National™ 97.3.7 [Defense Theory That Property Was Not Stolen: "Reasonable Cause To Believe" Instruction Improper].

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

    An essential element which the prosecution must prove beyond a reasonable doubt is that the property was stolen at the time it is alleged that the defendant [received] [or] [concealed] it.

    Property is stolen property when it has intentionally been taken from the owner without his or her consent and with the intent to deprive the owner of its possession permanently.

[See generally U.S. v. Golomb (2nd Cir. 1987) 811 F2d 787, 792; State v. Godsey (WI 1956) 75 NW2d 572, 573; Oosterwik v. State (WI 1943) 8 NW2d 346, 349; cf.  WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1481 [Receiving Stolen Property] ¶11, 12 (University of Wisconsin Law School, 2000).]

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PRACTICE NOTE: The language "reasonably should have known" or "reasonably should have believed" is preferable to "reasonable cause to believe." (OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-111, comment. [Receiving-Elements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).) "Reasonable cause to believe" implies that if the defendant reasonably believes the property is stolen, the crime has been committed, whether or not the property was in fact stolen. This would be improper since it is also an element that the property be stolen. (See FORECITE National™ 97.3.6 [Receiving/Possession Of Stolen Property: Defense Theory That Property Was Not "Stolen"].)

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See State v. McCoy (NJ 1989) 561 A2d 582, 586 [discussing cases from various jurisdictions and concluding "that an inference of possession may arise from a passenger’s presence in a stolen automobile when that presence is coupled with other additional evidence that the passenger knew the driver, knew that the vehicle was stolen, and intended to use the vehicle for his or her own benefit and enjoyment"].

    When a person exercises control over the property he or she has possession of it  for the purposes of receiving stolen property. (LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.10(b).)

    See also FORECITE National™ 56.2.8 [Possession: Nonowner Passenger In Vehicle Not Sufficient].

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 97.2.1 [Theft And Receiving: Whether Thief May Be Convicted Of Both].

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PRACTICE NOTE: Since an intent to return the property to its owner or to the police may be a valid defense theory to receiving stolen property (see FORECITE National™ 97.5.2 [Receiving Stolen Property: Intent To Return Property Or Other Innocent Intent As Defense Theory]), it may be appropriate to consider instructions on momentary or temporary possession to clarify this defense theory. (See FORECITE National™ 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].)

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes]..

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    97.3.11    Receiving/Possession Of Stolen Property: Negation Of Knowledge Element By Intoxication Or Mental Impairment

    See FORECITE National™ 47.2.2 [Subjective Knowledge As Mental State That May Be Negated By Mental Impairment, Intoxication, Etc.].

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Under due process/notice principles the owner or possessor of the property should be alleged when the defendant is charged with concealing stolen property since the charge is a crime against possession. (See e.g., Bogess v. State (OK 1925) 233 P 239 [variance between charging document and evidence at trial as to person from whom property was received required reversal]; McGill v. State (OK 1912) 120 P 297, 298; Murphy v. State (TX 1936) 95 SW2d 133, 135; Pichon v. State (TX 1988) 756 SW2d 16, 19 [fatal variance can result when indictment alleges person from whom defendant received stolen property is unknown, but proof developed at trial shows that indicting grand jury did in fact know person's name, or could have ascertained it by reasonable diligence]; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-110, comments [Receiving/Concealing Stolen Property] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

   See also FORECITE National™ 300.2 [Due Process: Notice].

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)

See FORECITE National™ 97.1.2 [Receiving Possession of Stolen Property: Federal Circuit Model Instructions And Notes].