Bass v. State, CR-95-1307

• Decision Date: 27 September 1996
• Docket Number: CR-95-1307
• Citation: 701 So.2d 44
• Parties: Keith Lemond BASS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 44

701 So.2d 44

Keith Lemond BASS v. STATE.

CR-95-1307.

Court of Criminal Appeals of Alabama.

Sept. 27, 1996.

Rehearing Denied May 2, 1997.

Certiorari Denied July 25, 1997

Alabama Supreme Court 1961355.

Narissa Nelson, Foley, for appellant.

Jeff Sessions and Bill Pryor, attys. gen., and Hense Ellis II, asst. atty. gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of receiving stolen property in the second degree, a violation of § 13A-8-18, Code of Alabama, 1975. He was sentenced to five years' imprisonment, was fined $1,000, was ordered to pay $250 to the Alabama crime victims compensation fund, and was directed to pay restitution to the victim. He was also ordered to pay attorney fees and court costs.

The appellant argues that the State presented insufficient evidence to support finding him guilty of the lesser included offense of receiving stolen property in the second degree, because, he says, the State failed to prove that he had exerted "control" of any stolen property and because, he says, the State failed to prove the value of the alleged stolen property.

The appellant failed to preserve the issue of the State's failure to prove the value of the property, because he never raised this specific claim before the trial court.

However, the appellant consistently argued at trial that he never exerted "control" over the vehicle that constituted the stolen property, because he was a passenger and was asleep in the backseat. At the close of the State's evidence, the appellant made a motion for a judgment of acquittal, arguing that the State failed to prove that he ever controlled the stolen vehicle, which, he maintains is an element of the offense of receiving stolen property. Although the State argues in its brief to this court that "control" is not an element of the offense, it was necessary to prove control in proving the offense of receiving stolen property as control relates to the concept of "possession."

In Berry v. State, 597 So.2d 730 (Ala.Cr.App.1992), the defendant argued that the State failed to present evidence that he "possessed" stolen guns found in the trunk of a vehicle stolen from the defendant's ex-mother-in-law, which he was driving. This court stated:

"Section 13A-8-16, 1975 Code of Alabama, provides that the accused's 'possess[ion of] goods or property which have been recently stolen ... shall be prima facie evidence that he has the requisite knowledge or belief.' The concept of 'possession,' for purposes of the receiving stolen property statute, implies control. 'It is undoubtedly true that, in order to sustain a conviction for receiving stolen property, the defendant must be shown to have had a control over the property.' Booker v. State, 151 Ala. 97, 99, 44 So. 56, 56 (1907). See also Milam v. State, 240 Ala. 314, 317, 198 So. 863, 865 (1940) ('[t]he defendant must be shown to have had control over the property for an appreciable moment of time'); Martin v. State, 461 So.2d 1340, 1342 (Ala.Cr.App.), cert. denied, 461 So.2d 1343 (Ala.1984). However, '[a]ctual physical control is not necessary to establish possession. Possession is to be determined by examining all of the surrounding circumstances.' Cheatham v. State, 431 So.2d 1350, 1354 (Ala.Cr.App.1983)."

597 So.2d at 733 (emphasis in original).

In J.W.B. v. State, 651 So.2d 73 (Ala.Cr.App.1994), this court reversed the trial court's judgment and rendered judgment for a defendant who had been convicted of receiving stolen property, where the State failed to prove that the defendant had any "control" over the stolen automobile. This court stated that "[a] defendant with the possession of stolen property 'must be shown to have had control over the property.' Milam v. State, 240 Ala. 314, 317, 198 So. 863, 865 (1941). The term '[r]eceiving ... includes, but is not limited to, acquiring possession, control or title and taking a security interest in the property.' § 13A-8-1(11)." 51 So.2d. at 75. In J.W.B. v. State, the defendant was not the sole occupant of the vehicle and "there was no evidence that the [defendant] exercised any degree of power or dominion over the automobile." 651 So.2d at 75, citing Knight v. State, 623 So.2d 376, 378 (Ala.Cr.App.1993); Player v. State, 568 So.2d 370, 373-74 (Ala.Cr.App.1990) (holding that evidence that a defendant was seen driving a recently stolen automobile supports a conviction for receiving stolen property). Although this court, in J.W.B. v. State, rendered a judgment for the defendant because the State failed to prove an essential element of the charged offense, this court further stated, "By this opinion we do not imply that a passenger in a stolen vehicle may never be convicted of receiving stolen property. We merely hold that, in...