By RICHARD WEATHERINGTON
When a person is charged with committing theft, does the state have to prove that the person pawning the item actually knew that it was stolen? That was the key issue recently before the Montana Supreme Court.
In the summer of 2005, a welder was stolen from a construction company. In August, a woman whose first name was Charitie pawned the welder for $800 at a Montana pawnshop. She told the pawnshop employee that the $800 was needed to bail her boyfriend out of jail.
Later, Charitie and her boyfriend returned to the pawnshop and borrowed another $812 against the welder. An employee of the construction company noticed the welder in the pawnshop, and told the company’s equipment manager. The equipment manager then matched the equipment number of the welder with that of the stolen item.
Charitie was charged with one count of felony theft under the Montana Code, specifically, with having “purposely or knowingly obtained or exerted unauthorized control” over the company’s welder “with the purpose of depriving it of the property.”
At trial, the state called the company’s equipment manager and the pawnshop employee as witnesses. The pawnshop employee indicated that Charitie gave no indication that she knew the welder had been stolen. At the conclusion of the state’s case,
Charitie moved for a verdict directed by the court. The court ruled that the state had presented sufficient evidence to support a conviction, and therefore denied her motion.
Charitie offered no evidence. During closing argument, the prosecutor argued there was no requirement within the jury instructions that the state had to prove that Charitie knew the property was stolen. The jury found her guilty, and she appealed.
The case ended up before the Montana Supreme Court, where Charitie raised the following issues:
- Must her conviction be reversed because there was no evidence that she knew the welder had been stolen?
- Was the trial court wrong by failing to instruct the jury that she could not be convicted absent proof beyond a reasonable doubt that she knew the welder was stolen?
- Did prosecutorial tactics render her trial unfair?
The Montana Supreme Court examined Charitie’s first issue on appeal. Charitie argued that her “theft conviction must be reversed . . . because, as the prosecutor admitted, there was no evidence that she knew that the welder she pawned had been stolen.”
Her argument, said the Supreme Court, was not a challenge to the sufficiency of the evidence generally, or even to the evidence of mental state generally, but, rather, was a narrow argument directed to a very specific point: the absence of evidence that she knew the welder had been stolen.
Charitie claimed that it was not illegal in Montana to pawn a stolen object if you did not know it was stolen. She also asked that the state be barred from asserting that any evidence was presented on this point, or that the jury was properly instructed that proof of this knowledge was required for conviction, given the prosecutor’s comments to the contrary during the trial.
The court pointed out that given the particular issues and arguments, the resolution of the appeal would require an interpretation of the theft statute.
The part of the theft statute under which Charitie was charged stated that:
Subsection (1) A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and (a) has the purpose of depriving the owner of the property. Subsection (3) of that statute provided that: (3) A person commits the offense of theft when the person purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another and (a) has the purpose of depriving the owner of the property; (b) purposely or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (c) uses, conceals or abandons the property knowing that the use, concealment or abandonment probably will deprive the owner of the property.
In addition, several relevant definitions included: “Knowingly” — a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person’s own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person’s conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence.
“Obtains or exerts control” — includes but is not limited to the taking, the carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.
“Purposely” — a person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person’s conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although the purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.
Argument about Language
Charitie first argued that the plain language of subsection (1) of the theft statute unambiguously required proof that she knew the welder was stolen. The state countered that it unambiguously did not.
Charitie, noting the requirement under subsection (3) that a person must know the property was stolen, alternatively argued that subsection (3) makes clear that proof of knowledge that the item was stolen was necessary for a theft conviction. She argued that the specific language of subsection (3) controlled any ambiguity that lied in subsection (1). She also claimed that subsection (3), being the more specific of the two provisions, controlled over the more general terms of subsection (1).
The state countered that the plain language of subsection (1) merely requires that a person “obtains or exerts unauthorized control” over property of the owner with the purpose to deprive the owner. It argued that a person can obtain unauthorized control over property without it first being stolen, such as failing to return the owner’s truck after the owner withdrew permission for a person to use it.
Charitie raised a second issue: Did the district court make an error by failing to instruct the jury that Charitie could not be convicted absent proof beyond a reasonable doubt that she knew the welder was stolen?
Charitie argued that the district court was wrong by refusing to instruct the jury that she could not be found guilty of theft absent proof beyond a reasonable doubt that she knew the welder was stolen. The state countered that “Charitie simply proposed a mental state that was not an element of the offense that the jury could properly consider.”
Was Trial Fair?
Finally, Charitie claimed that prosecutorial tactics rendered her trial unfair. Charitie argued that the prosecutor’s decision to charge her, proposed jury instruction of “knowingly,” jury selection tactics, opening statement, and closing argument compromised her right to a fair trial.
This is a condensed version of a story that appeared in the Summer 2010 issue of Today’s Pawnbroker. To read the entire story, subscribe to Today’s Pawnbroker.