Opinion
No. 19068.
October 20, 1983.
Appeal from the Third District Court, Salt Lake County, Dean E. Conder, J.
H. Ralph Klemm, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant was convicted of attempted theft by receiving two horses which proved not to have been stolen, but which were employed in what has come to be known as a "sting" operation. The defendant urges on appeal that the offense could not be committed unless the subject property was shown to have in fact been stolen.
In violation of U.C.A., 1953, §§ 76-6-408 and 76-4-101.
U.C.A., 1953, § 76-4-101 provides, in part, as follows:
(3) No defense to the offense of attempt shall arise:
(a) . . .
(b) Due to factual or legal impossibility if the offense could have been committed had the attendant circumstances been as the actor believed them to be.
To be guilty of attempted theft by receiving, the attendant circumstances need only be as the actor believed them to be. In State v. Sommers, Utah, 569 P.2d 1110 (1977), we made it clear that the actual theft of the property is not an essential element of the offense of attempted theft by receiving. The opinion negated "impossibility" as a defense as stated as follows:
Thus to exculpate defendant solely on the ground the television set he purchased was not, in fact, stolen property would shock the common sense of justice. The defense of impossibility is not a fundamental right. . . . His [defendant's] conviction was predicated on proof of his criminal purpose implemented by an overt act strongly corroborative of such purpose.
For a sampling of comparable rulings by sister states, see State v. Davidson, 20 Wn. App. 893, 584 P.2d 401 (1978); Darr v. People, 193 Colo. 445, 568 P.2d 32 (1977); Darnell v. State, 92 Nev. 680, 558 P.2d 624 (1976); and People v. Rojas, 55 Cal.2d 252, 10 Cal.Rptr. 465, 358 P.2d 921 (1961).
The Sommers holding is controlling. The verdict and judgment in the instant case are affirmed.
STEWART, J., concurs in the result.