Takeaway
In short, this case confirms that stolen property abandoned by a thief can be “lost,” and that a finder’s knowing appropriation of it supports a theft conviction when circumstantial evidence establishes both ownership and knowledge.
Jamestown West End Hide and Fur Company stored large rolls of scrap copper wire in its open yard after purchasing them from Otter Tail Power Company. In early December 1980, a partner discovered that several rolls were missing. Porter Brothers, another junk dealer, had purchased a similar roll from Frank Kaufman on December 4. The partner identified that wire as the company’s missing wire, and Kaufman told a deputy sheriff that he had found it near Windsor.
Kaufman was charged with theft of property lost, mislaid, or delivered by mistake under North Dakota Century Code § 12.1-23-04. After a bench trial in Stutsman County Court of Increased Jurisdiction, the court found him guilty and imposed six months in jail, with two and one-half months suspended, a $100 fine, and $79.75 restitution. Kaufman appealed both his conviction and sentence.
Issue #1
Whether property stolen from its owner and later abandoned by the thief is “lost” under § 12.1-23-04.
Holding
Yes. Property stolen and then abandoned at a location unknown to the owner is “lost” for purposes of the statute.
Reasoning
The court relied on its earlier explanation that “lost” concerns an involuntary change in location or an inability to find property. Here, the hide and fur company did not voluntarily move the wire, and it could not locate it when Kaufman claimed to have found it. Those facts made the wire lost from the owner’s perspective, even if it had first been stolen.
Decisions from other jurisdictions supported treating stolen-and-abandoned property as lost. More importantly, Kaufman’s contrary rule would create an arbitrary gap in theft liability: a finder who knowingly appropriated another’s property could escape liability merely because an unknown person had previously stolen it.
The statute was adopted from a federal criminal-law reform proposal intended to treat the knowing appropriation of found or discovered property as theft. That purpose focuses on the defendant’s knowing appropriation of property belonging to another, not on technical distinctions about how the property came to be out of the owner’s possession.
Issue #2
Whether the evidence was sufficient to prove that Kaufman disposed of property of another while knowing it was lost or mislaid.
Holding
Yes. Competent circumstantial evidence supported both the identification of the wire as another’s property and the finding that Kaufman knew it was lost.
Reasoning
On appellate review, a conviction supported by circumstantial evidence receives the same deference as any other verdict. The court asks only whether competent evidence permitted the factfinder to draw a reasonable inference of guilt and fairly warranted conviction.
The evidence adequately identified the wire Kaufman sold as the wire missing from the hide and fur company. The wire was a large roll, a form normally acquired from Otter Tail Power rather than from individual sellers; its rubber coating had been burned off in the same manner used by the hide and fur company; and Kaufman sold it shortly after the company discovered its wire missing.
Knowledge is subjective under the criminal code, but it may necessarily be proved from surrounding circumstances. The trial court could infer that Kaufman knew the wire was lost or mislaid from its substantial quantity—132 pounds—its rolled and stripped condition, its inherent value as copper, and Kaufman’s prompt sale of it. Kaufman offered no evidence to counter the State’s proof on that point.
Issue #3
Whether the sentence must be vacated because the trial judge considered the possibility that Kaufman originally stole the wire.
Holding
No. The record did not show that the trial judge substantially relied on an impermissible sentencing factor.
Reasoning
A sentence is set aside only when the defendant shows that the sentencing court substantially relied on an impermissible factor. Although the judge mentioned evidence that the wire had been removed from a business, the judge’s remarks, read in context, showed that he would not pursue or rely on that issue in sentencing.
The record also contained other legitimate considerations relevant to sentencing. Because Kaufman did not establish substantial reliance on the uncharged possibility that he stole the wire, the court declined to disturb the sentence.
Issue #4
Whether a 1981 statutory amendment reducing the grade of theft involving property valued under $250 applied to Kaufman’s earlier offense and required a lower sentence.
Holding
No. The amendment was not retroactive and did not affect a sentence lawfully imposed under the statute in force when Kaufman committed the offense.
Reasoning
When Kaufman committed the offense, theft of property worth more than $50 was a class A misdemeanor. The subsequent amendment would have made theft of property valued under $250, including this $79.75 wire, a class B misdemeanor and would have lowered the available maximum punishment.
North Dakota law provides that statutes are not retroactive unless the Legislature expressly declares otherwise. The 1981 amendment included no such declaration. Therefore, Kaufman’s sentence remained governed by the law in effect at the time of his offense, and the sentence fell within that statute’s limits.