Fortson v. State, No. 82S04-0811-CR-592.

Docket NºNo. 82S04-0811-CR-592.
Citation919 N.E.2d 1136
Case DateJanuary 21, 2010
CourtSupreme Court of Indiana
919 N.E.2d 1136
Kail FORTSON, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 82S04-0811-CR-592.
Supreme Court of Indiana.
January 21, 2010.

[919 N.E.2d 1137]

Matthew Jon McGovern, Evansville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 82A04-0801-CR-16

RUCKER, Justice.


Defendant was spotted driving a stolen pick-up truck within a few hours after the owner reported it missing. After being stopped by police officers, the defendant was belligerent and uncooperative insisting he did not steal the truck. Defendant was convicted of receiving stolen property and on appeal argued the evidence was not sufficient to sustain the conviction. A divided panel of the Court of Appeals agreed and reversed Defendant's conviction. Among other things the court reasoned that although the unexplained possession of recently stolen property standing alone may be sufficient to support a conviction for theft, it is not sufficient to support a conviction for receiving stolen property.

Facts and Procedural History

Around 4:30 p.m. on March 13, 2007, Nathan Sosh parked his 1993 Chevy S-10 pick-up truck in the parking lot of a Big Lots store in Evansville, Indiana. Accidently leaving his keys in the ignition Sosh went inside. When he exited the store thirty to forty-five minutes later his truck was gone. Sosh called his wife from a nearby pay phone; she picked him up; and after the couple returned home Sosh

919 N.E.2d 1138

called the police. Giving the police a description of the vehicle and the license plate number Sosh reported the truck missing. Around midnight he received a call that the truck had been recovered. In the meantime, at around 11:20 p.m. Officer Jeremy Matthews of the Evansville Police Department was on routine patrol when he saw a vehicle matching the description of Sosh's missing truck exit the parking lot of a motel located approximately two miles from Big Lots. Officer Matthews followed the truck for about four blocks until it pulled into the parking lot of another motel and came to a stop. At that point Officer Matthews pulled behind the truck and activated his emergency lights. By that time other units had arrived on the scene. Officer Matthews identified Fortson as the driver and noted there was also a passenger in the vehicle. The police ordered the pair out of the truck and placed Fortson in handcuffs. The passenger was released without questioning. When Fortson asked why he was being arrested, Officer Matthews told him that "he was in a stolen vehicle, and he was being arrested for Auto Theft...." Tr. at 41. Officer Matthews testified that Fortson "was fairly irate once he was explained he was being arrested" complaining that "it was a racially motivated stop, and just becoming more and more irate with me." Id. According to Officer Matthews "once [Fortson] was in custody, he was very belligerent, wasn't very cooperative at all to the point that I didn't even continue any further questioning." Tr. at 42. Also, according to Officer Matthews, Fortson "did imply that he did not steal the truck." (emphasis added). Id. Another officer on the scene, Officer Nicholas Henderson, was more explicit: "I do believe he yelled that he didn't steal it ... it was loaned to him, it was given to him to use ... I don't remember the exact words he used." Tr. at 56. However, the officers did not ask Fortson who loaned the truck to him.

The State charged Fortson with receiving stolen property, a Class D felony. And the case proceeded to trial by jury on November 2, 2007. Failing to appear, Fortson was tried in absentia.1 Sosh testified that he did not know Fortson and did not give him permission to drive Sosh's truck. He also testified that although the truck was not damaged in any way, when he retrieved it there were a number of empty beer cans and an empty liquor bottle in the bed of the truck that did not belong to him.2

The jury returned a verdict of guilty as charged. At the December 6, 2007 sentencing hearing the trial court sentenced Fortson to a term of eighteen months in the Department of Correction. Fortson appealed challenging the sufficiency of the evidence and argued the State failed to show that he "knew that the pickup truck he was driving was stolen." Br. of Appellant at 5. A divided panel of the Court of Appeals agreed and reversed the judgment of the trial court in an unpublished memorandum decision. Fortson v. State, No. 82A04-0801-CR-16, 893 N.E.2d 779 (August 29, 2008). In doing so the court observed:

H]ad the State charged Fortson with theft we would be faced with an anomalous result where the mere unexplained possession of recently stolen property is sufficient to support an inference of theft of that property. The J.B. court

[919 N.E.2d 1139

J.B. v. State, 748 N.E.2d 914 (Ind.Ct. App.2001) ] stated, and we agree, that until our Supreme Court instructs otherwise, the unexplained possession of recently stolen property may be sufficient to support a conviction for theft; however if the State charges receiving stolen property, the unexplained possession of recently stolen property must be accompanied with additional circumstances supporting an inference that the accused knew the property was stolen. We agree with J.B. that the disparate application of this inference may well lead to anomalous results and join with them in urging our Supreme Court to clarify this anomaly.

Fortson, slip op. at 6 n. 3 (internal citations and quotations omitted). Having previously granted transfer we now address the anomaly the Court of Appeals has identified. In all other respects we summarily affirm its opinion.

Discussion

The statute defining the crime of Receiving Stolen Property provides: "A person who knowingly or intentionally receives, retains, or disposes of the property of another person that has been the subject of theft commits receiving stolen property, a Class D felony...." Ind.Code § 35-43-4-2(b). In addition to proving the explicit elements of the crime, the State must also prove beyond a reasonable doubt that the person knew that the property was stolen. Gibson v. State, 643 N.E.2d 885, 887 (Ind.1994); Ind.Code § 35-41-2-2(d) ("Unless the statute defining the offense provides otherwise, if a kind of culpability is required for commission of an offense, it is required with respect to every material element of the prohibited conduct."). And knowledge that property is stolen may be inferred from the circumstances surrounding the possession. Stone v. State, 555 N.E.2d 475, 477 (Ind.1990); Marshall v. State, 505 N.E.2d 853, 856 (Ind.Ct.App.1987). However it has long been the accepted law in this state that the "surrounding circumstances" must include something more than the mere unexplained possession of recently stolen property. Instead the "mere possession" rule has been reserved for the charge of the theft. As this Court observed almost a century ago, "[t]he rule that the possession of stolen property, the proceeds of a larceny, soon after the commission of the offense, unless explained, is prima facie evidence of the guilt of the person in whose possession the property is found, does not apply to the offense of receiving stolen property." Bowers v. State, 196 Ind. 4, 146 N.E. 818, 820 (1925); see also Wertheimer v. State, 201 Ind. 572, 169 N.E. 40. 201 Ind. 572, 169 N.E. 40, 44 n. 1 (1929) ("Where, as in the case at bar, there is no evidence to show that the theft was committed by some person other than the defendant charged with receiving the goods, such possession of goods recently stolen raises a presumption of theft, rather than of receiving stolen goods, and is not prima facie evidence that the possessor is guilty of receiving stolen goods.").

A number of jurisdictions adhere to some variant of the mere possession rule.3

[919 N.E.2d 1140

Not only does the rule have a rather ancient pedigree, but also as variously stated the rule's underlying rationale has been explained as follows:

Proof of the possession of stolen property is, of course, competent and essential to substantiate the charge [of receiving stolen property]; but the naked possession without proof that the defendant received the goods knowing they had been stolen will not sustain the charge. The very essence of the offense is the receiving knowing them to have been stolen. If the presumption is to be indulged that every person found in [the] possession of stolen goods knows them to be stolen, the state would be relieved of establishing the guilty knowledge, and the burden thrown on the defendant of establishing his innocence.

State v. Richmond, 186 Mo. 71, 84 S.W. 880, 882-83 (1904); see also Adkins v. State, 532 N.E.2d 6, 8 (Ind.1989) ("Circumstantial evidence may establish the defendant's knowledge that the property is stolen, the gravamen of the offense. But such knowledge cannot be inferred solely from the unexplained possession of recently stolen property." (citations omitted)); Mattingly v. State, 421 N.E.2d 18, 19 (Ind. Ct.App.1981) ("[I]t is equally clear that knowledge of the stolen character of property may not be inferred solely from the unexplained possession of recently stolen property. In fact, it has been specifically held that the rule which permits inference of guilt of theft from unexplained possession of recently stolen property does not apply in receiving stolen property cases.") (citations omitted); accord State v. Adams, 133 N.C. 667, 45 S.E. 553, 554 (1903) (In a receiving stolen property case the court reasoned that "[I]f one awoke in the morning, finding a stolen horse in his stable, and it being shown that some other person put it there, the law would raise no presumption that it was done with the knowledge of the owner of the stable.").

But what is the origin of the notion that for a charge of...

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57 practice notes
  • S.G. v. State , No. 49A05–1011–JV–736.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 24, 2011
    ...of the crime, the State must also prove beyond a reasonable doubt that the person knew that the property was stolen. Fortson v. State, 919 N.E.2d 1136, 1139 (Ind.2010) (citing Gibson v. State, 643 N.E.2d 885, 887 (Ind.1994)); Ind.Code § 35–41–2–2(d) (“Unless the statute defining the offense......
  • Cardosi v. State, Supreme Court Case No. 18S-LW-181
    • United States
    • Indiana Supreme Court of Indiana
    • August 7, 2019
    ...can't support a conviction for auto theft. Irvin v. State , 501 N.E.2d 1139, 1140 (Ind. Ct. App. 1986) ; see also Fortson v. State , 919 N.E.2d 1136, 1143 (Ind. 2010) (holding that "the mere unexplained possession of recently stolen property standing alone does not automatically support a c......
  • Bond v. State Of Ind., No. 71A03-0910-CR-457.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 2, 2010
    ...possession of recently stolen property standing alone does not automatically support a conviction for theft. Fortson v. State, 919 N.E.2d 1136, 1143 (Ind.2010). Rather, such possession is to be considered along with the other evidence in a case, such as how recent or distant in time the pos......
  • D.S. v. State, No. 49A04–1210–JV–522.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 2013
    ...doubt that the person knew that the property was stolen.” S.G. v. State, 956 N.E.2d 668, 681 (Ind.Ct.App.2011) (citing Fortson v. State, 919 N.E.2d 1136, 1139 (Ind.2010)), trans. denied; see Ind.Code § 35–41–2–2(d) ( “Unless the statute defining the offense provides otherwise, if a kind of ......
  • Request a trial to view additional results
57 cases
  • S.G. v. State , No. 49A05–1011–JV–736.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 24, 2011
    ...of the crime, the State must also prove beyond a reasonable doubt that the person knew that the property was stolen. Fortson v. State, 919 N.E.2d 1136, 1139 (Ind.2010) (citing Gibson v. State, 643 N.E.2d 885, 887 (Ind.1994)); Ind.Code § 35–41–2–2(d) (“Unless the statute defining the offense......
  • Cardosi v. State, Supreme Court Case No. 18S-LW-181
    • United States
    • Indiana Supreme Court of Indiana
    • August 7, 2019
    ...can't support a conviction for auto theft. Irvin v. State , 501 N.E.2d 1139, 1140 (Ind. Ct. App. 1986) ; see also Fortson v. State , 919 N.E.2d 1136, 1143 (Ind. 2010) (holding that "the mere unexplained possession of recently stolen property standing alone does not automatically support a c......
  • Bond v. State Of Ind., No. 71A03-0910-CR-457.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 2, 2010
    ...possession of recently stolen property standing alone does not automatically support a conviction for theft. Fortson v. State, 919 N.E.2d 1136, 1143 (Ind.2010). Rather, such possession is to be considered along with the other evidence in a case, such as how recent or distant in time the pos......
  • D.S. v. State, No. 49A04–1210–JV–522.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 23, 2013
    ...doubt that the person knew that the property was stolen.” S.G. v. State, 956 N.E.2d 668, 681 (Ind.Ct.App.2011) (citing Fortson v. State, 919 N.E.2d 1136, 1139 (Ind.2010)), trans. denied; see Ind.Code § 35–41–2–2(d) ( “Unless the statute defining the offense provides otherwise, if a kind of ......
  • Request a trial to view additional results

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