dissenting:
The defendant worked at a wholesale automobile auction where he met Jim Colby, a licensed auto dealer. From this there arose a private transaction between the two for the sale by Colby to defendant of the 1985 Cadillac. Apparently no bill of sale or ownership papers accompanied the sale.
The basis for defendant’s claim that the conviction should be reversed is the jury instruction which stated, “The purchase of stolen property outside the regular course of business permits a conclusion that the purchaser was aware of the risk that it had been stolen.”
The instruction was taken from Recommended Arizona Jury Instruction 18.025(c) and expresses the statutory inference set forth in A.R.S. § 13-2305(3) which provides:
Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business, or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
In my opinion, the statute applies here and supports the instruction. Where I differ with the majority is my reading of the statute to permit its application where the seller and not the buyer is the car dealer. In my view, if a car buyer buys a car from a car dealer outside the regular course of business, the buyer is signaled that there is a risk that something may be wrong, particularly where he is not given sale papers in the transaction. A.R.S. § 13-2305(3) translates this risk into a permissive inference where there is a charge of trafficking in stolen property. The instruction in this case presented the permissive inference to the jury.
It appears that Division Two of this court has reached the same conclusion in State v. Dean, 129 Ariz. 17, 628 P.2d 54 (App.1981). The implication of the decision is to the effect that the inference in A.R.S. § 13-2305 would apply to an ordinary buyer who buys merchandise from a dealer out of the regular course of business.
The majority notes the comment from R. Gerber, Criminal Law of Arizona 321 (1978), which states the inference of A.R.S. § 13-2305 applies only if the defendant is a “dealer in property.” Since the plain language of the statute does not read that way, I would reject the comment in the treatise.
The facts of this case provide an excellent example of when a non-dealer defend*91ant should have been aware of the risk the property was stolen when buying from a dealer. Here, the defendant knew the person who allegedly sold him the car was a dealer in automobiles. The fact that the defendant was not provided ownership papers or even a bill of sale for a $16,000 to $19,000 Cadillac should have raised questions in the defendant’s mind that the sale was not what it purported to be. This certainly was not a sale in the regular course of business and is exactly the situation addressed by the inference in A.R.S. § 13-2305(3).
In my opinion the instruction was not error and I would affirm the defendant’s conviction and sentence.
Finally, as the majority notes, there was no objection by defendant to the instruction. Although I find the instruction was proper, if it were error, I would join the majority view that it was fundamental under the facts of this case.
I would affirm the conviction and sentence.