I would have no trouble with this case had appellant been charged and convicted of attempting to receive stolen property under ยง 564.011, RSMo 1978. See State v. Hunt, 651 S.W.2d 587 (Mo.App. 1983) (involving a sting operation). The legislature did abolish the legal impossibility defense for attempt offenses, and a person can be convicted of attempting to receive stolen property when the property is, in fact, not stolen. I do not believe that the legislature intended that the same facts could constitute an offense under both ยง 570.080 and ยง 564.011 nor do I believe that the legislature intended creating two different degrees of punishment for the same acts, depending solely upon which statute the prosecutor may choose to file.
State v. Armstrong, 361 S.W.2d 811, 817 [4, 5] (Mo. 1962). Many cases have recognized that wholesale and retail prices are relevant in determining fair market value ( State v. Carter, 544 S.W.2d 334, 339 (Mo.App. 1976); State v. Hunt, 651 S.W.2d 587, 591 [10] (Mo.App. 1983); State v. Williams, 643 S.W.2d 3, 5 [6] (Mo.App. 1982)), "* * * provided the sale did not occur at a time too remote from the time as of which the property value is to be determined." State v. Thornton, 557 S.W.2d 1, 3[4] (Mo.App. 1977).
See also Morrow, 996 S.W.2d 679, (only two elements under Section 564.011); State v. Hunt, 651 S.W.2d 587, 589 (Mo.App.E.D. 1983) (legal impossibility is not a defense to Section 564.011); Molasky, 765 S.W.2d at 601 (only two elements required, attempt and a substantial step, and an act "in perpetration" is no longer required); State v. O'Dell, 684 S.W.2d 453, 462 (Mo.App.S.D. 1984) (listing only two elements). This change in the statute shifts the focus to what the actor had already done, and away from what the actor has left to do.
When the legislature created the inchoate offense of an attempt to commit a crime upon proof that the accused took a "substantial step" toward commission of the offense, ยง 564.011, it eliminated the "impossibility" defense. See State v. Hunt, 651 S.W.2d 587, 589[1] (Mo. App. 1983). Specifically, ยง 564.011.2 provides: "It is no defense to a prosecution under this section that the offense attempted was, under the actual attendant circumstances, factually or legally impossible of commission, if such offense could have been committed had the attendant circumstances been as the actor believed them to be."
More importantly Instruction No. 6 tracks the statutory definition of possession found in ยง 195.010(33) RSMo (Supp. 1989). Under these circumstances use of the statutory definition was appropriate and sufficient for the guidance of the jury. State v. Smith, 342 S.W.2d 940, 942 (Mo. 1961); State v. Hunt, 651 S.W.2d 587, 590 (Mo.App. 1983). It is likewise significant that subsequent to trial MAI-CR 3d 333.00 was amended to track the statutory definition of possession found in ยง 195.010(33). "[I]t is not open to us to declare erroneous the use of that form which now has been adopted for standard use by the Supreme Court."
Finally, he argues the evidence of values in May, 1986, is not sufficient to establish the value of the stolen parts on November 28, 1986. It is well established that evidence of value on a preceding date may provide a sufficient basis for the determination of value on a later date. Many cases have recognized that wholesale and retail prices are relevant in determining fair market value ( State v. Carter, 544 S.W.2d 334, 339 (Mo.App. 1976); State v. Hunt, 651 S.W.2d 587, 591[10] (Mo.App. 1983); State v. Williams, 643 S.W.2d 3, 5[6] (Mo.App. 1982)), `. . . provided the sale did not occur at a time too remote from the time as of which the property value is to be determined.' State v. Thornton, 557 S.W.2d 1, 3[4] (Mo.App. 1977).State v. Torregrossa, 680 S.W.2d 220, 226 (Mo.App. 1984).
See Colo. R.S. 18-2-101(1) (1986). A similar situation was presented to the Missouri Court of Appeals in State v. Hunt (Mo.App. 1983), 651 S.W.2d 587. In that case, the court ruled that "Missouri joins the vast majority of states whch have rejected * * * [legal impossibility as] a defense."
That a recording is partially unintelligible is no ground for rejecting the intelligible portion, unless the unintelligible portions are so substantial as to render the whole untrustworthy. State v. Hunt, 651 S.W.2d 587, 591 (Mo.App. 1983). The August 19 tape revealed a conversation about the killing, Smith test-firing the weapon, and the comment Smith would have to stick the gun to husband's forehead.
" This court recently said in a case involving this statute, "defendant cannot be exonerated because facts unknown to him made it impossible to succeed... In eliminating impossibility as a defense, Missouri joins the vast majority of states which have rejected such a defense." State v. Hunt, 651 S.W.2d 587, 589 (Mo.App. 1983). Similarly, ยง 564.016, RSMo, 1978, states that the offense of conspiracy is committed when "a person ... with the purpose of promoting or facilitating" an offense, agrees with another "that they or one ... of them will engage in conduct which constitutes such offense."
We deal first with appellant's contention that he was not guilty of an attempt to receive stolen property because the Redi-Ratchet was never stolen. This argument, the so-called "legal impossibility" defense, was rejected in State v. Hunt, 651 S.W.2d 587 (Mo.App. 1983), a case of first impression in Missouri. We agree with the rationale in Hunt, and need not repeat it here. Hunt upheld a conviction of attempting to receive stolen property, on facts indistinguishable from those before us. Appellant's contention is denied.