Garcia v. State

URBIGKIT, Justice,

concurring in part and dissenting in part.

I concur in affirming the conviction of Glenn Eddie Garcia (Garcia), age eighteen, for aggravated assault as well as interference with a police officer. These charges resulted from his conduct with a motor vehicle which endangered the police officer, the general public, his automobile passengers and, of course, himself. Differing, however, as to the concealing stolen property charge, I dissent in that conviction and would reverse that count.

According to the appellate record, Garcia stole a 1984 dark-blue Toyota Célica in Laramie, Wyoming mid-afternoon on November 1, 1987, after which he purchased gasoline in Laramie, drove to Fort Collins, Colorado, purchased more gasoline and then came to Cheyenne, Wyoming. Local police, following an alert by an all points bulletin, observed the vehicle on the city streets and took up the chase. Nothing about Garcia’s activities showed an effort to conceal. Garcia had picked up his fiancee and two other passengers in Cheyenne and then engaged in a course of in-town driving. The vehicle, for ease of identification, had a Wyoming license plate, was dark-blue in color and easily distinctive in model. I fail to find in these events and appellate record any sufficient evidence of concealing stolen property. We are presented with a course of behavior revealing Garcia’s macho character by his driving around Cheyenne in the illegally taken, very identifiable automobile.1 Hunter v. State, 704 P.2d 713 (Wyo.1985), to the contrary, Garcia simply did not conceal the stolen property. This count within the total charges and concurrent sentences given will hopefully, at least for now, not make any difference for Garcia as he is called to task for his other very serious criminal misconduct. Cf W.S. 6-10-201 (habitual criminal statute exposure if any further offenses should be a crime of violence). It is to be noted, however, that if the Laramie offense was joyriding, W.S. 31-11-102, and not larceny, W.S. 6-3-402, it would be only a misdemeanor while the concealment charge, W.S. 6-3-403, is a maximum ten year felony. See Engle v. State, 774 P.2d 1303 (Wyo.1989).

I would have preferred to have avoided these inquiries in dissent by application of the concurrent sentence doctrine. Driskill v. State, 761 P.2d 980 (Wyo.1988). See Emanuel, The Concurrent Sentence Doctrine Dies a Quiet Death — Or Are the Reports Greatly Exaggerated?, 16 Fla.St. U.L.Rev. 269 (1988). Nevertheless, since neither Garcia nor the State wish to discuss a question of why this concurrent sentence really matters, substantive consideration remains necessary for this issue of law of major significance in Wyoming criminal justice precedent.

For Garcia, the act conceptualized into a concealing stolen property offense for trial in Laramie County, Wyoming is substituted for the actual offense of felony larceny or misdemeanor joyriding committed in Albany County. In that process, we create what is not so as to be something by a mirage of language. Garcia did everything but conceal that dark-blue, 1984 Wyoming licensed Toyota Célica and, in concurring with the appropriate conviction of the offenses for what he did do, I would not convict him of what he obviously did not do. My concern is not the double jeopardy *1099question of two convictions for the same offense, it is in the creation of an independently conceived and necessarily corollary duplicate offense for every occurrence of larceny. Jackson v. Com., 670 S.W.2d 828 (Ky.1984), cert, denied 469 U.S. 1111, 105 S.Ct. 791, 83 L.Ed.2d 784 (1985).

In historical perspective, it is apparent that the ancestors of the receiving, concealing and disposing statute, now W.S. 6-3-403.2 was initially adopted as a third-party crime to augment the first-party offense of larceny currently provided in W.S. 6-3-402.3 See in historical perspective the original Wyoming statute, 1890 Wyo. Sess. Laws ch. 73.4

From there, statutory construction has clouded original intent despite the continued recognition that the thief could also not be guilty of receiving. This result has occurred by further implication that an offense could exist of concealment or disposition as a first-party crime. The adaptation was not without resistance, but this court took the concept to ultimate application in Hunter, 704 P.2d 713 by conclusion that in driving out of Michigan in a stolen car, a concealing offense occurred in stopping to ask directions from police in Laramie, Wyoming.

This historical process of judicial legislating to cover expanded areas of conviction has viable precedent, but the majority now accommodates an extension that is not justified in history, language or existent case law. Where concealment has been expanded to the thief as a first-person, not third-■person offense, the case law has required a discrete offense as subsequent in time to the initial larceny for separation from the initial principal offense. That consonant is missing in the present expansion of a criminal offense to cover a joyriding offense as a concealment crime. Here, undoubtedly, if Garcia had been somewhat more careful in publicly driving the stolen vehicle around Cheyenne, he would either have had the opportunity to return to Laramie or abandon the vehicle in Cheyenne.

Within the extensive national case law, Hunter reaches the outer limits of criminal conviction justification; permitting, however, an accommodation to be made for this case which still denies present affirmation. Missing for any comparable acceptability, even where the conjunctive offenses can be impressed upon the original thief, are facts sufficiently removed to create a separate or discrete criminal offense arising from do*1100ing something more than committing the original larceny. Initial instruction is provided by the early Wyoming case of Cur-ran v. State, 12 Wyo. 553, 76 P. 577 (1904) and the superintending constitutional analysis of Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961). The perceptive interpretation of Justice Frankfurter, although in dissent in Milanovich, has irreversibly set the standard for application of a second offense chargeable to the thief after completion of the larceny:

It is hornbook law that a thief cannot be charged with committing two offenses — that is, stealing and receiving the goods he has stolen. E. g., Cartwright v. United States, 146 F.2d 133; State v. Tindall, 213 S.C. 484, 50 S.E.2d 188; see 2 Wharton, Criminal Law and Procedure, § 576; 136 A.L.R. 1087. And this is so for the commonsensical, if not obvious, reason that a man who takes property does not at the same time give himself the property he has taken. In short, taking and receiving, as a contemporaneous — indeed a coincidental — phenomenon, constitute one transaction in life and, therefore, not two transactions in law. It also may well be that a person who does not himself take but is a contemporaneous participant as an aider and abettor in the taking is also a participant in a single transaction and therefore has committed but a single offense. Regina v. Coggins, 12 Cox C.C. 517; Regina v. Perkins, 2 Den. C.C. 458, 169 Eng.Rep. 582; Rex v. Owen, 1 Moody C.C. 96, 168 Eng.Rep. 1200. In such a case, the jury must be told that the taking and receiving, being but a single transaction, constitute, of course, only one crime. See Commonwealth v. Haskins, 128 Mass. 60. (This, of course, does not bar Congress from outlawing and punishing as separate offenses the severable ingredients of one compound transaction. See Gore v. United States, 357 U.S. 386 [78 S.Ct. 1280, 2 L.Ed.2d 1405].)
The case before us presents a totally different situation — not a coincidental or even a contemporaneous transaction, in the loosest conception of contemporaneity. Here we have two clearly severed transactions. The case against the defendant — and the only case — presented two behaviors or transactions by defendant clearly and decisively separated in time and in will. The intervening seventeen days between defendant’s accessorial share in the theft and her conduct as a recipient left the amplest opportunities for events outside her control to frustrate her hope of sharing in the booty, or ample time for her to change her criminal purpose and avail herself of a locus poenitentiae. Two larcenies, separated in time, would not be merged * * *.

Milanovich, 365 U.S. at 558-59, 81 S.Ct. at 731-32 (Frankfurter, J., dissenting).

It is in the absence of a lapse of time during one joyriding episode during an afternoon and evening activity by continuing to use the stolen Toyota Célica that this decision of the majority is faulty in persuasion and legal perspective in extracting a concealment offense. In order to recognize the attributes of this judicially created offense, it is necessary to observe that the character of conduct within the single statute has come to be differentiated where commonly including a choice of receipt, concealment or disposition. It was first factually obvious that the receiving could not create a second offense if the thief was the only actor. As a singular number of cases recite, a person cannot receive from himself where the larcenous conduct affixed the original possession for him. However, the ingenuity of effort of the courts to affirm convictions and ease venue choice problems in conviction came to recognize that there could be a theory of a separate event as a second crime by either concealment or property disposition. This application abandons the historical concept that the original statutes (often more severe in punishment than larceny) were directed at the fence or marketer in crime.

Curran fits within this perspective. In that case, there was no certain proof that the defendant participated in the original theft, although thereafter contributing in crime by receipt of the merchandise from an unproved source who was, in fact, ap*1101parently a coworker who had pleaded guilty. The second offense status of receipt and concealment was established and proof of the original theft was not required. Curran was convicted of being a guilty receiver so that in a prosecution against a receiver the name of the thief is immaterial. Curran, 12 Wyo. at 572, 76 P. 577. The material facts for that case were (1) receipt (2) of goods that had been stolen and (3) knowing them to have been stolen. This resolution is not in conflict with Mila-novich, but specifically falls within the Frankfurter second-offense criteria. The obvious differentiation here between Garcia’s conviction and Hunter’s offense is time and geography sufficient to extrapolate out another or second crime instead of one joyriding sequence.

To apprehend any logic in this progression, we should first understand the initial third-party conduct determinant of these receiving, concealing and disposing statutes and then apply the majority and dissent in Milanovich to define the redirection achieved. The basic point of non-application of a crime to the thief “receiving from himself,” Milanovich, 365 U.S. at 552, 81 S.Ct. at 729, was conclusively stated and comprehensively supported in Annotation, May Participant in Larceny or Theft Be Convicted of Offenses of Receiving or Concealing the Stolen Property?, 136 A.L.R. 1087, 1088 (1942), which states that “[i]t is an elementary principle of law that the principal in a theft, or the person who actually steals the property, cannot be convicted of the crime of receiving, concealing, or aiding in the concealment of the property stolen.” Included within the more than 100 cases cited in that annotation and its succeeding update services, are Milanovich, 365 U.S. 551, 81 S.Ct. 728; United States v. Casey, 540 F.2d 811 (5th Cir. 1976); Leon v. State, 21 Ariz. 418, 189 P. 433 (1920); People v. Jackson, 78 Cal.App.3d 533, 144 Cal.Rptr. 199 (1978); People v. Jaramillo, 16 Cal.3d 752, 129 Cal.Rptr. 306, 548 P.2d 706 (1976); People v. Tatum, 209 Cal.App.2d 179, 25 Cal.Rptr. 832 (1962); Duncan v. State, 503 So.2d 443 (Fla.App.1987); People v. Feinberg, 237 Ill. 348, 86 N.E. 584 (1908); State v. Alvarez, 9 Kan.App.2d 371, 678 P.2d 1132 (1984); Com. v. McCann, 16 Mass.App. 990, 454 N.E.2d 497 (1983); State v. Hines, 354 N.W.2d 91 (Minn.App.1984); and State v. Hancock, 44 Wash.App. 297, 721 P.2d 1006 (1986). This rule is comprehensively and decisively settled that where a larceny has been committed, the principal thief, that is the one who is guilty of the actual taking, cannot be adjudged guilty of criminally receiving the stolen goods for the reason that the thief cannot receive from himself. See Leon, 189 P. at 434. See also W. LaFave & A. Scott, Criminal Law § 93 at 681 (1972).

Further analysis is then required to follow what is best described as the discrete— differentiated offense flowing from the concealment or disposition function of the post-larceny possession statutes such as W.S. 6-3-403(a). Within this concept as was advanced by Justice Frankfurter in Milanovich, it is apparent that transitionally severed occurrences as separated in time and in will are required to create a basis for conviction of the thief for a second offense. Milanovich, 365 U.S. at 559, 81 S.Ct. at 732. Initially related to the offense or a third-party, see discussion in Jackson, 144 Cal.Rptr. 199 and Jaramillo, 548 P.2d 706.

This adaptation developed to ensnare the initial thief for commission of a second offense against the property invokes establishment of that follow-on or separable offense. It is in accord with the conduct of Hunter in driving from Michigan away from the owner and police of that state to Wyoming, that justification in policy and precedent exists. Hunter only goes as far as it goes, and Pote v. State, 695 P.2d 617 (Wyo.1985) extends no further in support of what this majority now attempts to do to affirm. In Pote, the concealed car and guns had been acquired by larcenous conduct of persons not clearly determined sometime earlier in Washington and Oregon. Whatever those discrete offenses may have first been, they ended with completion of the thievery at that geographically far removed location and the new offense occurred in Park County, Wyoming *1102by the secretion of the stolen property at the cabin when occupied by the criminals in attempted escape from the bar room shoot out in Cody, Wyoming.

In Hunter, the Laramie, Wyoming offense was different from the original taking. In Pote, there was certainly a different course of criminal conduct. Curran also adds no support since the essence of that case clearly demonstrated that Curran was not the initial thief from the Union Pacific Railroad Company but rather a guilty receiver. Proof of identity of the original thief was not required for conviction of the crime of receipt. The differentiation between an accessory offense and the substantive felony is clearly identified. See State v. Tageant, 673 P.2d 651 (Wyo. 1983), where the only appellate issue was knowledge of the stolen character of the merchandise. That issue does not offend the discrete offense requirement for second conviction which is this appellate issue.

In broad perspective, the only issue at task in development of a definable and consistent legal theory which retains logic and rejects fantasy of a philosophic bent to confirm conviction is what conduct is intrinsic to the original offense in its continuing nature and what conduct is separate and discrete as an additional offense. Conduct of selling stolen property is easy to identify; but retaining for a period of time embraces questions of further defined conduct or intent to produce the second crime after the original theft. Tageant was of the first class involving admitted resale. Hunter was the second conception. We now face Garcia which embraces only one continuous joyriding episode.

In addition to the dual event thesis to be derived from the somewhat recent Milano-vich case, a course of development accommodating the discrete offense differentiation as a definable progression of the law can be ascertained from a course of other cases. The basic original cases include Byrd v. State, 117 Tex.Cr. 489, 38 S.W.2d 332 (1931). See also Jaramillo, 548 P.2d 706; State v. Weiner, 84 Conn. 411, 80 A. 198 (1911); State v. Ward, 40 Conn. 429 (1881); Wertheimer & Goldberg v. State, 201 Ind. 572, 169 N.E. 40 (1929); Com. v. Matheson, 328 Mass. 371, 103 N.E.2d 714 (1952); People v. Harris, 53 N.W. 780 (Mich.1892); and Recent Case, Criminal Law — Receiving Stolen Property.—[Texas], 27 Ill.L.Rev. 207 (1932). Jaramillo involved driving a stolen vehicle, where the car was stolen in San Diego in August 1972 and about twelve days later, the defendant was found driving the car in Van Nuys, California. Jaramillo was charged with both theft and receiving and was convicted of both. The Supreme Court of California reversed by leaving an option for retrial or reinstatement of the conviction only on receiving.

The Michigan court in Harris, 53 N.W. 780 dealt with charges of both stealing and concealing the horse. The court affirmed the count of conviction for concealment on trial proof that Harris was not in the vicinity when the horse was abducted. The separate offense existed for which Harris was properly convicted. In Byrd, 38 S.W.2d 332, the issue was whether the evidence had proven a case of theft and not one of receiving stolen property for which defendant was convicted. The contemporaneous nature of the facts defined Byrd as a principal in theft and “being a principal to the theft, he cannot be guilty of the crime of knowingly receiving said stolen cattle, and can only be convicted of the offense of which the evidence shows him guilty, and for this reason the judgment of the trial court cannot be sustained.” Id. at 334.

In Com. v. Kuperstein, 207 Mass. 25, 92 N.E. 1008, 1009 (1910), it was questioned whether defendant aided in getting the cloth disposed so that it might find its way into the ordinary channels of trade, and by being commingled with the general merchandise of the country, lose the marks of identity as stolen property. This might be effective aid in its concealment. See similarly in question Harris, 53 N.W. 780. In Matheson, 103 N.E.2d at 714, defendant aided in the concealment of the stolen goods knowing them to have been stolen. In State v. Moynahan, 164 Conn. 560, 325 A.2d 199, cert. denied 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973), the deputy superintendent of police acquired and dis*1103posed of a stolen television set. That case recognizes that a third party, upon acquisition of known stolen property, conceals it criminally if he does not return it and conversely converts it to his own use involving affirmative prescribed conduct not related to initial theft. See likewise State v. Pambianchi, 139 Conn. 543, 95 A.2d 695 (1953). The word “conceals” ordinarily implies design or purpose. Norton v. State, 119 Neb. 588, 230 N.W. 438 (1930). The conduct becomes a substantive crime separate from just theft. See also United States v. Pichany, 490 F.2d 1073 (7th Cir.1973) and State v. Conklin, 153 Iowa 216, 133 N.W. 119 (1911). In Lindsey v. Com., 383 S.W.2d 333 (Ky.1964), after admission of initial theft, the receiving charge was dismissed and defendant was promptly recharged and convicted on the theft as a differentiated transaction from the original receiving charge. See also Tramnell v. State, 511 S.W.2d 951 (Tex.Cr.App.1974).

Analysis of the case law provides relevant tests for facts adjudicatively sufficient to show the differentiated or discrete offense of concealing or disposing which will escape the confinement of the one offense crime for a single theft. The near unanimous case law, except in two cases of the recent innovation of an alternative venue statute,5 delineates required proof of a successive separate offense.

What conduct of the thief is sufficient to create the second offense responsibility for what he does with the property after the initial act of borrowing or stealing, e.g., taking and removal (driving away)? In Jackson, 144 CahRptr. 199, acquisition and retention for resale as one transaction did not invoke application of receiving, concealing and withholding as an additional or different crime. Tatum, 25 Cal.Rptr. 832 presented a house trailer' stolen in Lancaster, California on November 7 and located three days later parked in Moorpark, California. Defendant was tried and acquitted of theft for the original taking and then charged in Ventura County with concealing. That court said:

We conclude that, in the absence of facts indicating a complete divorcement of the concealing activities from the course of conduct of the thief in the initial concealing of the property stolen by him, a thief may not be found guilty of concealment in violation of section 496(1). (Accord: People v. Daghita, 301 N.Y. 223, 93 N.E.2d 649.) In the instant case a review of the testimony reveals there was no evidence of concealment independent of that involved in the theft. In the absence of such evidence it was error to instruct the jury that they could find defendant guilty of concealment even though they believed he had stolen the trailer.
Had there been evidence of acts of concealment entirely separate and apart from the theft and sufficiently removed therefrom to constitute an independent course of conduct, then an instruction which clearly spelled out such distinction could properly have been given.

Id. 25 CaLRptr. at 835. Similarly postured in California law are People v. Marquez, 237 Cal.App.2d 627, 47 Cal.Rptr. 166 (1965), disapproved on other bases sub nom. People v. Ramirez, 668 P.2d 761, 767 (Cal.1983) and Williams v. Superior Court of Los Angeles County, 81 Cal.App.3d 330, 146 Cal.Rptr. 311 (1978). In the latter case, in comprehensive review, the defendant attorneys lost the challenge to charges against them for receiving and concealing when they surreptitiously obtained an insurance company’s investigative file which was then used to solicit clients and achieve a large personal injury settlement. They were not innocent acquirers. In State v. Para, 120 Ariz. 26, 583 P.2d 1346, 1349-50 (1978), the court faced a *1104course of action not proved to have been originally a theft but a later retention of whether the

“acts of concealment entirely separate and apart from the theft and sufficiently removed therefrom to constitute an independent course of conduct.” People v. Tatum, 209 Cal.App.2d 179, 185, 25 Cal. Rptr. 832, 835 (1962). We believe the rule stated by the California courts is applicable to our statute. Thus, in order to return a verdict of guilty, the jury had to find (1) that appellant stole the horses by possessing or concealing them when he knew they were not his, and (2) that appellant committed further acts of possession or concealment. The evidence was sufficient to present a jury question on this issue.

Based on inadequate instructions, the conviction was reversed.

The Oregon court adduced the same rule for application of initial theft and subsequent removal to a disassociated rural location “to a deserted area and concealed the [stolen] meters under some trees and stumps.” State v. Carlton, 233 Or. 296, 378 P.2d 557, 557 (1963). That court said in analysis:

The keystone of the defense's contention is the proposition that a thief cannot be convicted of receiving stolen property when the property received is the selfsame property which he stole. The state concedes this proposition. It is without contradiction. 2 Wharton, Criminal Law and Procedure (Anderson), § 576. This proposition is based upon the logical reason that one cannot receive something from one’s self. Here, however, the court convicted Carlton of concealing stolen property. The court stated it was not necessary to decide whether or not the defendant was also guilty of receiving stolen property.
Once this distinction is comprehended, that defendant was convicted of concealing, not receiving, stolen property, it is apparent that the logical barrier, one cannot receive from one’s self, has no materiality. This then becomes a commonplace situation. The defendant engaged in a criminal transaction, or course of conduct. He stole meters; he carried them off; and he concealed them. The state selected one part of this transaction which constituted the crime of concealing stolen property and the defendant was convicted of such crime. The defendant is contending that he cannot be convicted of concealing the stolen property because the state could have convicted him of a different crime involving the first part of the transaction, i.e., stealing or larceny. The fact that one transaction embodies facts constituting two crimes and the state chooses to prosecute for one rather than the other cannot avail defendant, unless the existence of one crime precludes the other. Proving larceny precludes establishment of receiving, but not concealing.

Id. 378 P.2d at 557 (emphasis in original).

The Washington case, Hancock, 721 P.2d 1006, is distinguishable in application of similar facts from the Oregon case but follows the same perception in denial of the second offense of possession where the miscreant held the stolen cheese until a sale could be obtained. The Washington court reversed the second conviction on the basis that only one offense had occurred. Taking the cheese to a barn for three weeks was not sufficient to create a second criminal offense of concealment following the original theft. See also Alvarez, 678 P.2d 1132, where the differentiated offense charge created a venue question for a doubled crime claim. The truck was stolen in McPherson County, Kansas and found with defendant in Segwick County, Kansas. The court determined that McPherson County venue did not permit complaint amendment to charge a crime committed in another county involving receipt of stolen property.

Attuned to this two-offense criteria is State v. Larocco, 742 P.2d 89 (Utah App. 1987), cert, granted 765 P.2d 1277 (Utah 1988), where the theft of the automobile occurred in 1981 and both concealment with possession and use continued for the next four years. The Utah court affirmed theft for the original crime and possession by conclusion that “[t]he crime of theft by no *1105means includes retention and possession of the stolen goods for a period in excess of four years.” Id. at 97. That case provided justification in broader perspective than did our decision in Hunter. In State v. El-lerbe, 217 La. 639, 47 So.2d 30 (1950), the court opined that pigs which were obtained illegally in Franklin Parish, Louisiana and then taken to Caldwell Parish, Louisiana where the defendant résided did not create an offense of receiving stolen property separately in his home parish where the receiving offense had been committed elsewhere. That case is to be compared with the later case of State v. Crum, 255 La. 60, 229 So.2d 700 (1969), where the motor vehicle was stolen in Mississippi and then taken to New Orleans and used in a robbery. Concealment was found for a criminal offense. Attendant circumstances were considered and found as

[t]he commingling of a stolen automobile with other vehicles on the public thoroughfares of a city foreign to and removed from the owner is an effective hinderance to the owner’s discovery of it.
We conclude that the removal of the automobile by Crum and Smith from Mississippi to Louisiana, and more particularly into the populous City of New Orleans, and their use of it for their own purposes and benefit were calculated to hinder or prevent the owner’s discovery and recovery of it, and constitute “concealing” within the statute.

Id. 229 So.2d at 701.

It is apparent that a singular difference exists between taking a car from Mississippi to the large metropolitan of New Orleans when compared with joyriding around the Laramie, Fort Collins, and Cheyenne areas at a distance from original taking of approximately forty-five miles. Factually similar to this case and precedentially influential in reasoning is the Fifth Circuit Court of Appeals opinion in Casey, 540 F.2d 811, where the automobile was stolen in Alabama and shortly thereafter found as occupied by defendant in Georgia. At issue was a concealment charge. That court observed:

Although the term “conceal” as used in [federal law] is not limited to physically secreting the vehicle, all of the cases which have found sufficient evidence to sustain a conviction for concealment have involved some overt physical act on the part of the Defendant. For example, this Circuit, as others, has held that acts such as altering title papers, changing vehicle identification numbers, changing license plates, or making false statements on title applications, fall within the broad definition of the term.
The difference between oral deception and physical deception is a distinction with a difference under [federal law]. All of the overt physical acts in other cases affirming [federal law] convictions operated in some sense to conceal the stolen vehicle as well as to conceal the crime. Changing a car’s license plates, like painting it a different color, is a deliberate and premeditated physical attempt to disguise the vehicle — to make it seem to be one other than the one which was stolen. A spontaneous verbal denial that one has stolen the car one is driving simply does not rise to this level of “concealment.” The stolen vehicle is there, in its original form, for all the world to see — through verbalization, the miscreant can only hope to conceal the fact that a crime has occurred.

Id. at 815 (footnotes omitted).

It is my reasoned conclusion by following the general concept of the law, that Garcia’s activities did not provide sufficient evidence to justify his conviction for a post-theft offense of the felony of concealment under W.S. 6-3-403. He did not conceal and should not be convicted of what he did not do. These facts do not justify that judicial expansion by slight of phrase to result in making any taking into a two-crime offense. The logical result is to create a conclusive presumption that if you steal, you conceal, and effectively repeals the joyriding misdemeanor statute. Cf. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

I respectfully concur in affirming the conviction of Glenn Eddie Garcia for aggravated assault as well as interference with a police officer, but dissent as to the conceal*1106ing stolen property charge and would reverse conviction on that count.

. The record also reveals different explanations of different passengers as to how he got the car, but to none that it was stolen until he tried to escape when spotted by the police. This case does tell "the rest of the story" which is unfortunately missing from television and movie exploitation of hot rod driving and police chase escapes as a world of fantasy and non-described risk. See also Coryell v. Town of Pinedale, 745 P.2d 883 (Wyo.1987) (Urbigkit, J., specially concurring). Joyriding can end up to be attempted or committed homicide.

. W.S. 6-3-403 states:

(a) A person who buys, receives, conceals or disposes of property which he knows, believes or has reasonable cause to believe was obtained in violation of law is guilty of:
(i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is five hundred dollars ($500.00) or more; or
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(b) A person may be indicted under this section in the county where he received or possessed the property, notwithstanding the wrongful taking occurred in another county.

. W.S. 6-3-402 states in part:

(a) A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny.
(b) A bailee, a public servant as defined by W.S. 6-5-101(a)(vi) or any person entrusted with the control, care or custody of any money or other property who, with intent to steal or to deprive the owner of the property, converts the property to his own or another’s use is guilty of larceny.
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(d) Conduct denoted larceny in this section constitutes a single offense embracing the separate crimes formerly known as larceny, larceny by bailee or embezzlement.

.Section 39 of 1890 Wyo. Sess. Laws ch. 73 states:

Whoever feloniously steals, takes and carries, leads or drives away the personal goods of another of the value of twenty-five dollars or upwards, is guilty of grand larceny, and shall be imprisoned in the penitentiary not more than ten years.

Section 41 of 1890 Wyo. Sess. Laws ch. 73 states:

Whoever buys, receives, conceals or aids in the concealment of anything of value, which has been stolen, taken by robbers, embezzled or obtained by false pretense, knowing the same to have been stolen, taken by robbers, embezzled or obtained by false pretense, shall, if the goods are of the value of twenty-five dollars or upwards, suffer the punishment prescribed for grand larceny, and if the goods are worth less than twenty-five dollars, shall suffer the punishment prescribed for petit larceny.

. There are two cases based on recent state statutes which affirmatively find a separate offense of possession of stolen property at time of arrest no matter how related in time or activity to the earlier theft. See Sutton v. Com., 623 S.W.2d 879 (Ky.1981) and People v. Hastings, 422 Mich. 267, 373 N.W.2d 533 (1985). These statutes actually create an alternative but not a double offense exposure by creation of a possession offense. See Jackson, 670 S.W.2d 828 and Phillips v. Com., 679 S.W.2d 235 (Ky.1984), holding that dual prosecution is inappropriate since the offenses merged.