Although joining in Justice Golden's dissent, I am compelled to write separately because the court throughout the opinion cites the governing law and then misapplies, misunderstands, or confuses the application of the law to the facts of this case. For example, the court, citing Broom v. State, 695 P.2d 640,642 (Wyo. 1985), states:
"It is not our function to weigh the evidence for a determination as to whether or not it is sufficient to establish guilt beyond a reasonable doubt. We have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve conflicts in the evidence." At 804.
The court then proceeds to weigh the evidence and draw different inferences to reverse this jury verdict.
The court next cites with approval and reaffirms as a correct statement of law the following instruction:
"Possession of recently stolen property is not of itself sufficient to permit a finding that the Defendant is guilty of the crime charged. However, possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which the Jury may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen, and, is also a circumstance from which the jury may reasonably draw the inference that the person in possession not only knew it was stolen property, but also participated in some way in the theft of the property.
"Although possession is a strong circumstance tending to show guilt, there must be corroborative evidence tending to prove Defendant's guilt. However, this corroborative evidence need only be slight." At 804.
The court then quotes liberally from Tageant v. State,673 P.2d 651 (Wyo. 1983), and concludes that unlike Tageant, the State
"did not prove by corroborating evidence that Appellant knew, believed, or had reasonable cause to believe that the bit was obtained in violation of law." (emphasis added) At 805.
In light of that statement, I find quite troubling within the majority opinion the following statement:
"In this case, Appellant did not testify at his trial, and he did not present any evidence which explained his possession of the bit." At 805.
In the above instruction to the jury, cited with approval, it is said that
"possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which the Jury *Page 807 may reasonably draw the inference and find, in the light of surrounding circumstances shown by the evidence in the case, that the person in possession knew the property had been stolen * * *."
The inference the jury was entitled to draw pursuant to the law of the case was significant and telling corroboration of the fact that appellant knew, believed, or had reasonable cause to believe the bit was obtained in violation of law.
Next the majority states in the opinion:
"The record does not show that Appellant acquired or disposed of the bit in an unusual manner." At 805.
The statement is patently wrong. The disposition of this bit was indeed unusual. This appellant was a dealer who had sold many used bits, but never before had he sold a brand new bit to Anderson — more corroborating evidence.
The court then states:
"The State attempts to make hay out of the fact that Appellant tried to sell the bit for $1,500 when its suggested retail price was $5,138. That discrepancy does not corroborate the claim that Appellant knew the bit was stolen because Anderson testified that it was not unusual for secondhand bits to be sold for an amount considerably less than the suggested retail price." At 805-806.
But this was not a secondhand bit. It was a brand new bit. And, of course, the State made hay out of the discrepancy as it should — and so too probably the jury in drawing proper inferences. More corroboration.
Finally, the majority states:
When the purchaser of the bit, Anderson, asked appellant where he had "gotten the bit," appellant said he had been in Texas. The State's attorney then queried as follows:
"Q. [T]he response that he had been in Texas was in direct response to your question, where did you get this bit?
"A. As I remember, yes."
Surprisingly, the court then concludes: "Anderson's testimony simply does not indicate that Appellant made any * * * evasive * * * statements." At 805. The majority cannot be serious. The answer seems evasive. At least the answer was not a direct response to the question. I would consider the following similar examples also to be evasive. A man apprehended with $100,000 in cash when asked where did you get this money, responds, "I've been to Texas." A man with a gun when asked where did you get this gun, responds, "I've been to Texas." These examples illustrate why I cannot accept the court's conclusion.
The above demonstrates substantial corroborative evidence exists sufficient to support a finding of guilty knowledge and allow a jury, acting within its responsibility, to properly find a reasonable inference of guilt, as it did in this case. The majority has gone beyond its responsibility by acting as a jury itself.
Finally, with issuance of this opinion, what is the law respecting receiving, concealing or disposing of stolen property? As I read this opinion, the State failed only to prove that appellant "had prior knowledge of the location, nature, or value of the bit or that Appellant had prior possession of other stolen property." At 804. In the future then, one must assume, based upon this opinion, that the State must prove in addition to all of the above, that the thief knows of the nature, location, and value of property before stealing that property or possesses other stolen property. This is indeed a strange new element of proof necessary to convict under W.S. 6-3-403(a).
I would affirm.