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01/13/95 OSCAR EUGENE KENT v. STATE

January 13, 1995

OSCAR EUGENE KENT, JR.
v.
STATE



Appeal from Jefferson Circuit Court. (CC-92-4021). Michael McCormick, TRIAL JUDGE.

Rule 39(k) Motion Denied March 3, 1995. Rehearing Denied March 3, 1995. Certiorari Denied May 19, 1995.

Patterson, Judge. All Judges Concur.

The opinion of the court was delivered by: Patterson

PATTERSON, JUDGE

The appellant, Oscar Eugene Kent, appeals his conviction for theft of property in the first degree and his subsequent split sentence of 10 years' imprisonment with 1 year to serve and 3 years' probation. He raises two issues on appeal. Because we reverse on one of these issues, we find it unnecessary to address both issues.

The facts of the case are briefly set forth below. Two employees of the Oil Equipment Company were riding together in an automobile when they spotted one of the company's air compressors being transported by a small dump truck. The two employees, Wesley Self and Christopher Price, followed the dump truck for about a mile, pulled up beside it, and told the driver, Kent, that the air compressor belonged to the company for which they worked. Kent told the men that he had been paid to move the compressor. Wesley and Price asked Kent to unhook the compressor and to leave it with them. A police officer, Officer Don Sivley, came upon the scene and inquired as to what had happened. Kent informed Sivley that he had been hired to move the compressor, but when asked who hired him, he could not name that person. Officer John Self was then called to the scene. Kent told Self that he was to meet the person who had hired him to tow the compressor at a car wash at Moody Crossroads. Sivley and Self followed Kent to the car wash to meet the person who had allegedly hired him, but no one ever arrived. Kent was transported to the Trussville police department where he made the following statement: He was at Hudd's grocery store at around 4:00 p.m. with his wife. While in the checkout line, Kent met a man whose name he could not remember, and they discussed their occupations. The man hired Kent to transport the air compressor for him at the agreed price of $35. While at the police station, Kent stated that the person who asked him to transport the air compressor was named "Vernon" but that he did not remember his last name.

Kent testified at trial to the following: His job involved trucking and contracting work; one of the things that he does in his job is move equipment; on the day of the incident in question, he met a man named "Vernon Carson" at Hudd's grocery store; Carson agreed to pay him $50 to tow the air compressor; and he believed that he had a right to take the compressor and tow it for Carson.

Kent contends that the trial court erred by not instructing the jury as he requested. The first requested jury charge in question, No. 3, was as follows:

"The Court instructs the jury that the defendant is charged in the indictment with the first degree theft of property. To sustain the charge of theft of property in the first degree, the state by the evidence must prove beyond a reasonable doubt each of the following elements of the offense: first, that the defendant, Oscar Kent, knowingly obtained or exerted unauthorized control, or obtained by deception control over property owned by Oil Equipment Company, Inc. a corporation; second, that he did so with intent to deprive the said owner of its property; third, that the property was of a value exceeding $1,000.00; and fourth, that the defendant did not act in the honest belief that he had a claim to said property which he was entitled to assert by taking possession of and moving the same. If you are not convinced by the evidence beyond a reasonable doubt either that he acted with the intent to deprive the true owner of its property, or that he did not act in the honest belief that he had a right to do what he was doing, you must acquit the defendant."

The trial court refused to give the requested charge. Alabama Code 1975, § 13A-2-6(a), provides:

"(a) A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief of fact unless:

"(1) His factual mistake negatives the culpable mental state required for the commission of an offense; or

"(2) The statute defining the offense or a statute related thereto expressly provides that such a factual mistake constitutes a defense or exemption; or

"(3) The factual mistake is of a kind that supports a defense of justification as defined in Article 2 ...


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