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97.5 Receiving/Possession Of Stolen Property: Innocent Intent Defense

    97.5.1 Receiving/Possession Of Stolen Property: Innocent Intent Defense
    97.5.2 Receiving Stolen Property: Intent To Return Property Or Other Innocent Intent As Defense Theory
    97.5.3 Receiving Stolen Property: Innocent Intent Defense -- Factors To Consider In Deciding Whether Defendant Knew The Property Was Stolen
    97.5.4 Receiving/Possession Of Stolen Property: Innocent Intent Defense -- Mere Possession Insufficient To Establish Knowledge
    97.5.5 Receiving/Possession Of Stolen Property: Innocent Intent Defense -- Subsequent Criminal Intent Not Sufficient

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RATIONALE: When appropriate the defendant should have a right to a defense theory instruction that the defendant did not have a dishonest purpose.

    For example, the mere receipt of stolen goods with knowledge that it has been stolen is not itself a crime if the property was received with intent to restore it to the owner without reward, to deliver it to the police or with any other innocent intent. (People v. Wielograf (CA 1980) 101 CA3d 488, 494 [161 CR 680]; see also People v. Dishman (CA 1982) 128 CA3d 717, 720-23 [180 CR 467]; see also OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-111, comment [Receiving-Elements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).) However, the innocent intent must exist at the moment the stolen property was accepted by the receiver. (Wielograf, 101 CA3d at 494.)

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].

    To be guilty of receiving or concealing stolen property the defendant must, at the time [he] [she] initially received or concealed the property, have wrongfully intended to aid the thief, deprive the owner of possession, make it more difficult for the owner to discover the theft or to collect a reward. The mere receipt or concealment of stolen property, with knowledge that it has been stolen, is not itself a crime if the property was received or concealed with the intent to restore it to the owner without reward or with any other innocent intent. If you have a reasonable doubt whether the defendant had the required wrongful intent, you must give [him] [her] the benefit of that doubt and find [him] [her] not guilty.

[Source: FORECITE National™.]

    The court further instructs the jury that before you can find the defendant guilty, you must find beyond a reasonable doubt, that [he] [she] received or transferred the stolen property with a dishonest purpose. You are further instructed that a dishonest purpose is one of a deceitful, cheating or fraudulent nature.

[Source: State v. Tanner (WV 1989) 382 SE2d 47, 49.]

    If the defendant [bought/received/possessed/concealed] the property with the honest belief that [he/she] had a right to do so, the defendant is not guilty of this crime, even if [his/her] belief was mistaken.

[See generally People v. Watts (MI 1984) 348 NW2d 39, 41; cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 26.5 [Honest Buying Or Receiving] (ICLE, 2nd ed. 1999).]

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RATIONALE: There is no criminal intent if property was received with intent to return it or with other innocent intent. Therefore, special instruction may be necessary so the jury will understand the need to find wrongful intent.

POINTS AND AUTHORITIES: Because receiving stolen property requires wrongful or criminal intent, the mere receipt of stolen goods with knowledge they were stolen is not itself a crime if, at the time the property was received the defendant had an innocent intent such as an intent to restore it to the owner or turn it over to the police without demanding a reward. (See e.g., Scott v. State (AL 1979) 374 So2d 316, 318 [it must appear that the property was stolen, that the accused bought, received or concealed it knowing that it was stolen and that the accused had no intention of returning the property to its owner]; see also People v. Dishman (CA 1982) 128 CA3d 717, 720-23 [180 CR 467]; People v. Wielograf (CA 1980) 101 CA3d 488, 494 [161 CR 680]; Dyer v. State (GA 1979) 258 SE2d 620 [essence of crime of theft by receiving stolen property is that defendant, with knowledge of facts and without intent to return it to owner, bought or obtained property which had been stolen by some person other than defendant]; State v. Lopez (NM 1990) 787 P2d 1261, 1263-64 [defendant charged with receiving stolen property had burden only of raising reasonable doubt that his actions were protected by intent-to-return defense; State had burden of negating defense beyond reasonable doubt]; Hutton v. State (OK 1972) 494 P2d 1246, 1248 [failure of trial court to give requested instruction in prosecution for receiving stolen goods which set forth theory of defense of lack of criminal intent and in failing to define the elements of the offense constituted reversible error]; FORECITE National™ 100.1.10 [Robbery: Good Faith, Claim Of Right, Consent].)

    However, the innocent intent must exist at the moment the stolen property was accepted by the receiver. (Wielograf, 101 CA3d at 494.)

    "It is not enough for guilt that one receive stolen property with knowledge that it is stolen. Otherwise, the policeman who catches a thief in possession of stolen property and who takes the bootie from him in order to return it to its owner would be guilty. Some sort of bad state of mind, in addition to the guilty knowledge, is required. [Citations.] This is so although this requirement is not generally spelled out in the statute defining the offense receiving stolen property. [Citations.]" (LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.10(e) p. 431.)

    For example, in State v. Barker (WV 1986) 346 SE2d 344, 348-50, a conviction for receiving stolen property was reversed for the failure to instruct on "dishonest purpose" in additional to guilty knowledge.

    See also FORECITE National™ 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

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

Robinson, Criminal Law Defenses (West, 1984) § 109(k) p. 553.

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

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RATIONALE: When the defense relies on the theory that the defendant did not know the property was stolen it may be appropriate to instruct the jury on some of the relevant factors to consider.

    For example, in People v. Salata (MI 1977) 262 NW2d 844, 846, the following factors were identified as relevant to the defendant’s guilty knowledge:

    (1)      the defendant’s possession of the stolen article shortly after it was stolen;

    (2)      change in the condition of the stolen article;

    (3)      alteration of identifying marks, serial numbers, or registration;

    (4)      a purchase price out of line with the article’s value; and

    (5)      lack of any reasonable explanation from the defendant for his or her possession of the item.

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

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    97.5.4    Receiving/Possession Of Stolen Property: Innocent Intent Defense -- Mere Possession Insufficient To Establish Knowledge

RATIONALE: To find dishonest intent solely from possession of stolen property would improperly assume that no innocent explanation for the possession exists. Hence, when appropriate the jury should be instructed against making such an improper assumption.

POINTS AND AUTHORITIES: Acquiring property without knowing or believing that it is stolen will not support a receiving stolen property charge. (OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-111, comment [Receiving-Elements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996); Camp v. State (OK 1939) 89 P2d 378, 380.) Moreover, such knowledge may not be presumed solely from the defendant’s possession of the stolen property. (Barnes v. U.S. (1973) 412 US 837, 843-46 [93 SCt 2357; 37 LEd2d 380]; Payne v. State (OK 1968) 435 P2d 424, 427; State v. Thomas (OR 1973) 509 P2d 446, 448-49; Willis v. State (TX 1990) 790 SW2d 307, 314 [reasonable belief that seller was rightful owner permitted affirmative defense of mistake of fact]; Walker v. State (TX 1976) 539 SW2d 894, 895 [possession of recently stolen property not sufficient to show knowledge that property was stolen]; Pollan v. State (TX 1952) 247 SW2d 889, 891.)

    See also 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].

    The mere possession of recently stolen property is not alone sufficient to convict the possessor of knowingly concealing stolen property.

[See Barnes v. U.S. (1973) 412 US 837, 843-46 [93 SCt 2357; 37 LEd2d 380]; Luman v. State (OK 1981) 626 P2d 869, 870-71; cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 5-112 [Receiving-Explanation Of Possession] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

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PRACTICE NOTE: The crime of receiving stolen property requires a concurrence of the stolen character of the property and the receiver's receipt of the property.  (LaFave & Scott, Substantive Criminal Law (West, 1986) § 8.10(f).)  Thus, if the property, once stolen, has been recovered by the owner before it is received by the receiver, the latter can not be guilty. (Ibid.) 

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