Boone v. State, 96-3670

• Citation: 711 So.2d 594
• Decision Date: 29 April 1998
• Docket Number: No. 96-3670,96-3670
• Parties: 23 Fla. L. Weekly D1113 Billy L. BOONE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 594

711 So.2d 594

23 Fla. L. Weekly D1113

Billy L. BOONE, Appellant, v. STATE of Florida, Appellee.

No. 96-3670.

District Court of Appeal of Florida,

First District.

April 29, 1998.

Nancy A. Daniels, Public Defender, and Nancy L. Showalter, Assistant Public Defender, Tallahassee, for Appellant.

Robert Butterworth, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.

KAHN, Judge.

Appellant Billy Boone challenges judgments and sentences on seven counts of grand theft. On appeal, he contends that the trial court erred by instructing the jury, over objection, on the inference to be drawn from possession of recently stolen property. We agree and reverse the judgments and sentences.

On August 15, 1995, a deputy sheriff responded to a homeowner's complaint of burglary to her single-family residence. The owner's mother and grandson, Michael Boone, lived in the house. Earlier that summer, Michael's brother, appellant Billy Boone, and a friend, Kevin Powell, had also lived in the house, but they were no longer living there at the time of the deputy's visit. While inside the residence, the deputy noticed a "pile of something" covered by a blanket and bolt cutters next to the pile. Out of curiosity, the deputy lifted the blanket and discovered three Pensacola News Journal newspaper vending boxes. The top part of the boxes appeared to have been cut or pried open. The deputy questioned Michael Boone and eventually investigated other leads involving appellant and Powell.

The deputy noted that the Pensacola News Journal had made multiple reports of stolen vending boxes. At a later time, Michael admitted to the deputy that he and Powell had stolen several newspaper vending boxes over the past month, including the three discovered at his residence. Michael also took the deputy to the location of additional stolen vending boxes.

The deputy also spoke to James Fuller. Fuller testified that "last summer" he had been at the Boone residence. According to Fuller, appellant said he was getting money for "partying" by stealing vending boxes using Powell's truck.

Powell testified that the Boones solicited his participation in the vending box thefts because he had a truck. He said that the three of them stole a number of boxes and shared the profits. Powell also stated that they painted the truck twice after the thefts.

Appellant denied any involvement in the newspaper box thefts. He worked at an off-shore job in Louisiana from August 8, 1995, until October 3, 1995. About three weeks before appellant left for that job, Michael bragged about stealing some vending boxes with Powell. At that time, appellant recalled discovering two newspaper boxes in Michael's room, a converted garage. Appellant then threatened to kick Michael and Powell out of the house if they did not get rid of the newspaper boxes.

At trial, the court instructed the jury over appellant's objection that:

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

Fla. Std. Jury Instr. (Crim.) 148; § 812.022(2), Fla. Stat (1995). The instruction allows the prosecution to show by inference the accused's knowledge of the stolen nature of the property and the accused's intent, which are essential elements of the offense of theft. See F.W.B. v. State, 538 So.2d 969 (Fla. 1st DCA 1989); Chamberland v. State, 429 So.2d 842 (Fla. 4th DCA 1983).

The trial court denied appellant's objection to the instruction because the court found that possession was a factual question for the jury. This was error. The reasonableness of an accused's explanation of his possession of recently stolen property is a question of fact for the jury. Nevertheless, the prosecution must demonstrate a factual basis for appellant's possession before the jury instruction may be given. See Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981). The instruction is not warranted absent an appropriate factual basis. See Consalvo v. State, 697 So.2d 805, 805 (Fla.1996); McClellan v. State, 434 So.2d 1 (Fla. 2d DCA 1983). Perhaps most importantly, the instruction is proper only where the possession is personal, where...