State v. Moffitt

NOTICE:  This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the
Vermont Reports. Readers are requested to notify the Reporter of
Decisions, Vermont Supreme Court, 111 State Street, Montpelier,
Vermont 05602 of any errors in order that corrections may be made
before this opinion goes to press.


                                No. 89-517


State of Vermont                             Supreme Court

                                             On Appeal from
     v.                                      District Court of Vermont,
                                             Unit No. 1, Bennington Circuit

Eric Moffitt                                 March Term, 1991


Theodore S. Mandeville, Jr., J.

William D. Wright, Bennington County State's Attorney, and Matthew Pifer,
  Deputy State's Attorney, Bennington, for plaintiff-appellee

E.M. Allen, Defender General, and Kerry DeWolfe and William Nelson,
  Appellate Attorneys, Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     MORSE, J.   In this appeal from a conviction for selling a stolen
rifle, we reverse and remand for a new trial because the court erroneously
instructed the jury on the element of knowledge.
     Defendant was charged under 13 V.S.A. { 2561(b), making it a crime for
a person to sell stolen property "knowing the same to be stolen."  The court
charged the jury, in effect, that knowledge is proved if defendant should
have known, given all the facts and circumstances, that the property was
stolen.
     The court instructed:
         The fact in issue is whether the defendant knew the
         rifle was stolen.  The State doesn't have to prove the
         defendant had actual knowledge that the goods had been
         stolen, but must prove that they had cause to believe by
         the defendant that the goods were stolen, or that he
         ought to have known from the circumstances that the
         goods were stolen.

     Defendant objected to the "ought to have known" language in the
instruction.  The State argues that defendant did not make its objection
specific enough under V.R.Cr.P. 30 (no error may be assigned to a jury
instruction unless an objection is made "stating distinctly the matter
[objected to] and the grounds of [the] objection").  We disagree.
     Defendant had submitted written requests asking the court to instruct
the jury that actual knowledge or belief of the stolen character of the
property was required.  The objection was sufficient to preserve the claim
on appeal because the court knew the exact language defendant wanted and
rejected it.
     Knowledge was the crucial issue at trial.  Knowledge that the rifle was
stolen is determined by a subjective standard rather than the objective
standard of negligence law (a reasonable person would have known,
therefore, defendant should have known).  The jury must conclude that
defendant actually knew or believed the goods he sold were stolen.  State v.
Alpert, 88 Vt. 191, 204, 92 A. 32, 37 (1914).
     Confusion in describing the type of knowledge required in this case may
have been engendered by a selective reading of State v. Guppy, 129 Vt. 591,
285 A.2d 717 (1971).  The State attempts to justify the court's instruction
by quoting the following part of a rather convoluted sentence:
           The respondent concedes that the State does not have
         the burden to prove actual knowledge but it must prove
         facts and circumstances so as to cause a belief in the
         respondent that the goods were stolen, or that he ought
         to have known from the circumstances they were stolen
         . . . .

Id. at 595-96, 285 A.2d  at 720.  What is not quoted is the final clause of
the sentence:
         and that such facts and circumstances must also satisfy
         the jury that the respondent did know and believe such
         goods were stolen.

Id. at 596, 285 A.2d  at 720.
     We need not reach defendant's other contention on appeal as the issue
is not likely to reoccur on retrial.
     Reversed and remanded.

                                        FOR THE COURT:




                                        Associate Justice