Opinion
No. 69925
FILED: November 5, 1996
APPEAL FROM THE CIRCUIT COURT OF CAPE GIRARDEAU COUNTY HON. JOHN GRIMM.
Ellen E. Flottman, Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Cheryl A. Caponegro, Asst. Attorney General, Jefferson City, for respondent.
Before: Dowd, Jr., P.J., Reinhard, J. and Gaertner, J.
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 30.25(b)
This memorandum is for the information of the parties and sets forth the reasons for our order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Defendant appeals after he was convicted following a bench trial of one count of receiving stolen property, § 570.080, RSMo 1994. The court sentenced him as a prior offender to a prison term of four years to run concurrently with a sentence for an unrelated conviction. We affirm.
The evidence reveals that in late June 1995, Jeff Erxleben discovered that approximately fifty compact discs (CD's) belonging to him and his roommate had been stolen from the entertainment center in his apartment. Erxleben reported the theft to the police, and an officer suggested that he look for the stolen items in nearby pawn shops. He subsequently found eighteen of the stolen CD's at The Record Store, which sold used CD's. At trial, he valued the recovered CD's at over $200. He recalled that he purchased all of his CD's "brand new" and paid between ten and fifteen dollars for each of them.
On cross-examination, Erxleben admitted that The Record Store sold used CD's for six or eight dollars each, resulting in a total price ranging from $108 to $144 for the eighteen CD's. The court then questioned Erxleben about his opinion of the value of the CD's:
THE COURT: What do you think the value of these CD's were — these 18 CD's were in June of '95?
MR. ERXLEBEN: Worth more than they sold them for at the pawn shops. That's how the pawn shop stays in business, he buys them real cheap and sells them so he still makes a pretty good profit off the price he sells them for. And you go in and buy two used ones as compared to one new one. They're worth more than six or eight dollars, that's for sure.
THE COURT: Nine or ten?
MR. ERXLEBEN: Easy. I mean, yeah, they were used. I had some of them for a while, but —
THE COURT: . . . How old were the CD's in June of '95?
MR. ERXLEBEN: Anywhere from a couple weeks old to two years old, maybe.
THE COURT: . . . [W]ere most of them closer to two years or most of them newer than that?
MR. ERXLEBEN: I'd say most of them were newer. I had bought them — they were newer to me because I had just purchased them. I was a college student, so never — I was paying to go to school and didn't have much cash to buy a lot of CD's.
On further cross-examination, Erxleben again testified that used record stores price used CD's for less than they are worth to sell them more quickly.
Two of the eighteen recovered CD's belonged to Erxleben's roommate, Gretchen Zelmer. Ms. Zelmer stated that several of the CD's stolen from her were "brand new" and "still in their packages."
Don Kepfer, owner of The Record Store, testified that he purchased twenty-two CD's from defendant on June 17, 1994. Kepfer sold four before Erxleben identified the remaining eighteen as his stolen CD's. Kepfer stated that he pays two or three dollars for a used CD and resells it for six or eight dollars. Kepfer paid defendant $53 for the twenty-two CD's and had priced the eighteen recovered by Erxleben at $124. He did not remember what price he had received for the four CD's he sold, but he stated that at the time, his inventory was evenly split between six and eight dollar CD's.
Brian Ritter, a police officer with the Cape Girardeau Police Department, investigated the theft and discovered pry marks on a door of Erxleben's apartment, indicating that a burglary had occurred.
Judy Gentry, a detective with the Cape Girardeau Police Department, testified that she interviewed defendant about the burglary, and he told her that he had sold the CD's to The Record Store for his homeless friend, Jonathan Pearce, who was unable to sell them himself because he did not have a driver's license. Defendant took twenty-six or twenty-eight CD's to The Record Store, but the owner purchased only twenty-two of them. He returned the remaining CD's to Pearce, gave him the proceeds of the sale, and received $5 for his services.
Defendant presented no evidence at trial.
On appeal, defendant contends there was not sufficient evidence to support his conviction because the state did not prove that the value of the CD's was at least $150.
When determining the sufficiency of the evidence for the purposes of sustaining a criminal conviction, we must accept as true all evidence and reasonable inferences which tend to prove the defendant's guilt and disregard all contrary evidence and inferences. State v. Rush, 862 S.W.2d 936, 939 (Mo. App. E.D. 1993).
Here, the trial court considered the issue and found that there was "ample evidence to conclude that the value was at least $150.00 based on the testimony of Mister Kepfer as well as Mister Erxleben." We agree. Erxleben and Ms. Zelmer testified that most of the eighteen recovered CD's were new, and Erxleben estimated that their total value exceeded $200. Erxleben repeatedly asserted that the value of the CD's exceeded the price charged by The Record Store. Age of a stolen item is relevant in determining its value, and an owner's opinion can be substantial evidence of an item's worth. State v. Holmes, 830 S.W.2d 460, 462 (Mo. App. E.D. 1992); State v. Reilly, 674 S.W.2d 530, 533 (Mo. banc 1984). The evidence supported a finding that the stolen property received by defendant was worth at least $150.
Judgment affirmed.