OUJI-CR 5-111

RECEIVING STOLEN PROPERTY - ELEMENTS

No person may be convicted of receiving stolen property unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, (receiving in exchange for anything of value)/buying;

Second, stolen/embezzled/(fraudulently/feloniously obtained) personal property;

Third, with a value of (less than $1,000)/($1,000-$2,499.99)/($2,500-$14,999.99)/($15,000 or more);

Fourth, (known/believed by the defendant)/(that the defendant reasonably should have known/believed) to have been stolen/embezzled/ (fraudulently/feloniously obtained);

Fifth, with the intent to (deprive permanently)/(aid the thief)/ (obtain some gain/reward for restoring the property to the owner)/(derive a benefit/profit).

______________________________

Statutory Authority: 21 O.S. Supp. 2019, § 1713.

Committee Comments

The conduct prohibited by the receiving-stolen-property statute is the receipt or purchase of stolen property. Receiving stolen property is a separate and independent crime from other property crimes, particularly larceny. Palmer v. State, 1951 OK CR 26, 228 P.2d 391, 93 Okl. Cr. 357. A person who is charged with receiving stolen property is, therefore, not an accessory of the person who feloniously obtains the property. As a consequence, a person charged with receiving stolen property can be convicted of the charge regardless of the status of the criminal proceedings against the thief. A discussion of the historical development of the crime of receiving stolen property is found in W. LaFave & A. Scott, Criminal Law § 93, at 682 (1972). On the other hand, a person who participates in the theft of the property cannot properly be charged with receiving stolen property because a thief cannot receive property from himself or from his accomplices. When a person is a participant in the theft, the proper charge is for the theft crime and an additional charge for receiving stolen property will not lie. Hair v. State, 1956 OK CR 28, ¶ 8, 294 P.2d 846, 850.

Receipt of property means that the receiver has gained possession of the property. A transfer of possession of stolen property must occur. McGee v. State, 1937 OK CR 29, 65 P.2d 207, 1937 OK CR 29; Sipes v. State, 1926 OK CR 412, 251 P. 511, 36 Okl. Cr. 1. Receipt can also be established by the exercise of dominion and control over the property by the defendant, regardless of whether the defendant has manual possession of the stolen property. Price v. State, 1913 OK CR 118, 131 P. 1102, 9 Okl. Cr. 359. See Hunsucker v. State, 1970 OK CR 140, ¶ 17, 475 P.2d 618, 621. Furthermore, due to the statutory language "buys," if an agreed-upon bargain has been struck, the crime of receiving stolen property seemingly has been committed, even though no dominion and control or physical possession has been exercised by the purchaser. The agreement to buy substitutes for the transfer of possession.

Section 1713 specifies "upon any consideration" as an element of the crime of receiving stolen property. The concept of consideration is contained in the conduct of buying, which is an alternative in the first element, and therefore this element does not need to be separately stated if evidence is presented that the defendant bought the stolen property. Where the stolen property is not bought, the trial court must specify the type of consideration that the defendant is alleged to have given for it. As the Oklahoma Court of Criminal Appeals noted in Hunsucker v. State, 1970 OK CR 140, ¶ 17, 475 P.2d 618, 621, "the consideration referred to in the statute may be of many different types." In Hunsucker, for example, the Court of Criminal Appeals affirmed a conviction where there was no evidence that the defendant had paid for the stolen property; instead, the consideration consisted of the defendant's promise to pay for it. Id. at ¶ 5, 475 P.2d at 619-20.

The receiving-stolen-property statute is meant to discourage commerce in stolen property and to provide a criminal sanction against "fences." Thus, for the crime to have been committed, the property must have been stolen. Moreover, property which has been stolen but has now lost its stolen taint does not qualify for the protection of the receiving-stolen-property statute. Booth v. State, 1964 OK CR 124, ¶ 6, 398 P.2d 863, 868. To discuss stolen property only, however, is not completely accurate because the statutory language indicates that property that has been embezzled, obtained by false pretense, or "otherwise feloniously obtained" is also covered by section 1713. The language "otherwise feloniously obtained" would seem to cover property obtained as a result of forgery, extortion, burglary, and other crimes. The language of the second element in the instruction reflects the broad language of the statute.

The language of section 1713 limits the coverage of the statute to personal property. The second element has been drafted accordingly. The definition of personal property under Oklahoma statutes and case law is broader, however, than the definition of personal property under common law. State v. McRay, 1919 OK CR 7, 177 P. 127, 15 Okl. Cr. 374; 21 O.S. 2011, §§ 103, 1712. Value is an inherent attribute of personal property. If the prosecutor proves that what has been received or purchased is personal property, the prosecutor has also proven value. Hence, the statutory language "any value whatsoever" does not, in the opinion of the Commission, create a separate element of the crime.

The third element presents the mens rea element for the crime of receiving stolen property. Prior to the 1961 amendments to section 1713, the cases had clearly held that the defendant had either to know or to believe that the property was stolen. Acquisition of property without knowledge or belief as to the character of the property would preclude conviction for the crime. Camp v. State, 1939 OK CR 30, 89 P.2d 378, 66 Okl. Cr. 20; Weaver v. State, 1925 OK CR 258, 235 P. 635, 30 Okl. Cr. 309; Pickering v. United States, 1909 OK CR 48, 101 P. 123, 2 Okl. Cr. 197. Of course, the mens rea element could be proved by circumstantial evidence. Walker v. State, 1946 OK CR 61, 170 P.2d 261, 82 Okl. Cr. 352; Lewis v. State, 1945 OK CR 90, 162 P.2d 201, 81 Okl. Cr.; Davis v. State, 1920 OK CR 228, 193 P. 745, 18 Okl. Cr. 112.

In 1961, the Legislature amended section 1713 by adding the words "or having reasonable cause to believe" in subsection 1 and by adding subsection 2. The court has held that the presumption of subsection 2 is unconstitutional insofar as knowledge of the stolen character of the property is presumed solely from possession of property that is stolen. Payne v. State, 1967 OK CR 194, ¶ 25, 435 P.2d 424, 428. Compare Humphrey v. State, 1969 OK CR 90, ¶ 4, 452 P.2d 590, 592. See also Barnes v. United States, 412 U.S. 837 (1973).

The Court of Criminal Appeals determined the issue of whether the 1961 amendment enlarged the mens rea element of receiving stolen property to include a reasonable-person standard in Richardson v. State, 1976 OK CR 24, ¶ 13, 545 P.2d 1292, 1295, and held that actual knowledge by the defendant of the stolen nature of the property was not required; "reasonable cause to believe" would suffice. See also Hutton v. State, 1972 OK CR 66, ¶ 9, 494 P.2d 1246, 1247 (instruction reading "knew or had reasonable cause to believe" held appropriate); Jackson v. State, 1973 OK CR 79, ¶¶ 12-13, 508 P.2d 277, 279-280. The 1961 amendment was intended to cover the situation in which a person should have made inquiry concerning the origin and title to the property because a reasonable person would have made inquiry. Failure to act as a reasonable person would have acted subjects one to criminal liability.

The Commission has decided to use the language "reasonably should have known" or "reasonably should have believed," rather than "reasonable cause to believe" in order to prevent a possible misunderstanding on the part of the jurors. The language "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 in fact is stolen. The Commission has concluded that the Legislature did not intend to subject persons to criminal liability solely because they believe they are receiving stolen property, when in fact they are not. What the Legislature intended to do by the amendments, in the opinion of the Commission, was to make a person inquire, when a reasonable person would have inquired, as to the character of the property. Failure to act as a reasonable person would have acted would then subject one to criminal liability, if the property is, in fact, stolen.

The "intent to deprive permanently" alternative in the fifth element presents a second mens rea requirement for the crime of receiving stolen property. Although this second mens rea element is not specifically mentioned in the statute, the Committee believes it is needed to prevent a person from being subjected to criminal penalty when the person receives stolen property knowing it to be stolen but with the intent to return the property to its owner/possessor or to deliver it to the police. The language of the instruction was chosen because the intent to deprive permanently is a mens rea element common to several property crimes which must have been present in order for the property to have acquired a felonious taint, as reflected in the second element.

The other alternatives in the fifth element are taken from Hanlon v. State, 1968 OK CR 89, ¶ 16, 441 P.2d 486, 489; and Pickering v. United States, 1909 OK CR 48, 101 P.123, 2 Okl. Cr. 197 (Syllabus 3 by the Court).

(2019 Supp.)