State v. Anderson

¶1concurring, in part, and dissenting, in part:

¶2I concur with the majority’s decision in this case to the extent that it reverses the appellant’s conviction. The failure to instruct the jury on all elements of the offense with which a defendant has been charged is reversible error. I dissent in this case, however, because I believe the majority should have taken this opportunity to revisit the decision in State v. Taylor, 176 W.Va. 671, 346 S.E.2d 822 (1986).

¶3In Taylor, the Court recognized that “W.Va.Code, 61-3-18, contains a series of offenses which relate to stolen property and, despite some commonality in the elements, the offenses are separate and distinct.” 176 W.Va. at 676, 346 S.E.2d at 826-27. The TaylorCourt further concluded that “there is sufficient disparity between the crime of transferring stolen property from that of receiving or aiding in the concealing of stolen property to warrant the conclusion that it is a separate offense.” 176 W.Va. at 675, 346 S.E.2d at 826. The Court then determined that:

The elements of transferring stolen property are: (1) the property must have been stolen by someone other than the accused; (2) the accused must have transferred the property knowing or having reason to believe that the property was stolen; (3) the property must have been transferred to someone other than the owner; and (4) the accused must have transferred the property with a dishonest purpose.

¶4Syllabus Point 1, in part, Taylor.

¶5In making this determination, the TaylorCourt relied upon cases previously decided in *766accordance with W.Va.Code § 61-3-18 that involved buying, receiving, or aiding in the concealment of stolen goods. In particular, the Court focused upon cases that enumerated the elements of those offenses. A review of that case law shows that the elements of those offenses were first determined in the case of State v. Smith, 98 W.Va. 185, 126 S.E. 703 (1925).

¶6At the time Smithwas decided, the relevant statute provided:

If any person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted.

¶798 W.Va. at 187, 126 S.E. at 704. The SmithCourt stated that:

Our statute is identical with that of the state of Virginia, and has remained as it came to us from the Virginia Code of 1860. In Hey v. Commonwealth, 73 Va. 946, 32 Grat. (Va.) 946, 34 Am. Rep. 799, it was held:

“To sustain the prosecution under the statute four things must be proved. 1. That the goods or other things were previously stolen by some other person. 2. That the accused bought or received them from another person, or aided in concealing them. 3. That at the time he so bought or received, or aided in concealing them, he knew they had been stolen. 4. That he so bought or received them, or aided in concealing them malo animo, or with a dishonest purpose.”

¶8Id.The TaylorCourt applied the long-standing elements of receiving stolen property as set forth above to the offense of transfen'ing stolen property. Although the TaylorCourt recognized that the term “transfer” was not added to W.Va.Code § 61-3-18 until 1931, this fundamental change in the statute was not taken into consideration.1176 W.Va. at 674, 346 S.E.2d at 825 (footnote added). In that regard, I believe the TaylorCourt erred.

¶9It is well-established that the offense of receiving or concealing stolen property requires proof that the property was stolen by someone other than the accused. Such proof is necessary because an accused cannot be convicted of both larceny and receiving or concealing the same property.

The reason for the rule, prohibiting conviction of both larceny and receiving or concealing the same stolen property, lies in the fact that the actions which constitute the taking or asportation of the property so far as the larceny is concerned are inseparable from those actions which constitute the receiving or concealment of the property. Thus, the receiving or concealment is considered not something that occurs subsequent to the larceny, but is in fact a part of it.

¶10Coley v. State, 391 So.2d 725, 727 (Fla.Dist.Ct.App.1980). However, the offense of transfen’ing stolen property is something that does in fact occur subsequent to the larceny. Moreover, the actions which constitute the offense of transferring stolen property are separate and distinct from the offense of larceny. Accordingly, I see no reason why a person cannot be found guilty of both larceny and transferring the same stolen property.

¶11In this case, the State pointed out in its brief that several jurisdictions recognize that a person can be convicted of both theft and trafficking, i.e., transfen’ing, the same property. I believe the majority should have taken this opportunity to bring West Virginia’s jurisprudence in line with modern decisions on this issue.

¶12Thus, for these reasons, I concur in part, and dissent, in part.

¶14(Filed Dec. 11, 2002)

¶15concurring:

¶16While I fully concur with the majority decision, I write separately to address the *767dissent’s proposition that this Court should have assumed an activist role in order to eliminate an established element of the offense of transferring stolen property by modifying our decision in State v. Taylor, 176 W.Va. 671, 346 S.E.2d 822 (1986). In more specific terms, the dissent opines that because the offense of transferring stolen property occurs subsequent to the larceny of the goods, the element of proof that the property was previously stolen by a person other than the accused is unnecessary. By eliminating this element, an accused could be charged and convicted of both larceny of the property and of transferring the stolen property.

¶17The majority correctly declined the State’s invitation to abandon an established element of the crime of transferring stolen property because this Court simply has no defensible reason for reaching that issue. Even though we may not have considered in Taylorall .of the possible reasons why the Legislature included the tei'm “transfer” in the provisions of § 61-3-18 when the statute was recodified in 1931, the Legislature has taken no steps to clarify a different intent regarding the elements of the crime since Taylorwas handed down in 1986. Additionally, the text of the statute, which actually has not been amended since the 1931 recodifieation, provides ample support for the elements of the crime of transferring stolen property as defined by Taylor.1

¶18It is readily apparent from the majority’s recitation of facts that the prosecution sought this change in the law in order to correct its mistakes of failing to prove the questioned element, proposing a jury instruction which did not contain this element and losing the conviction on the basis of these omissions. By advocating for this change proposed by the prosecution in order to uphold the defendant’s conviction in this ease, the dissent ignores federal and state constitutional ex post facto proscriptions. It is quite clear from our holding in syllabus point one of Adkins v. Bordenkircher, 164 W.Va. 292, 262 S.E.2d 885 (1980), that any change in the elements of this offense could not be applied to the defendant because “[ujnder ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him.”

¶19Consequently, I concur -with the majority because I see absolutely no justification for disregarding our deep-rooted dedication to the principle of stare decisis in circumstances such as these where the law is clear. Casting aside well-settled law for no reason other than to substitute judge-made law is particularly reprehensible in the area of criminal law where clarity and fairness are overriding concerns.

¶20I am authorized to state that Justice STARCHER joins me in this concurring opinion.