Gibson v. State

• Decision Date: 28 November 1994
• Docket Number: No. 55S01-9411-CR-1121,55S01-9411-CR-1121
• Citation: 643 N.E.2d 885
• Parties: Jeffrey GIBSON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 885

643 N.E.2d 885

Jeffrey GIBSON, Appellant, v. STATE of Indiana, Appellee.

No. 55S01-9411-CR-1121.

Supreme Court of Indiana.

Nov. 28, 1994.

R. Stephen Donovan, Martinsville, for appellant.

Pamela Carter, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

We write to address the conflict within the Court of Appeals ¹ as to whether a person can be convicted of the crime of Receiving Stolen Property if that person is the actual thief.

A jury convicted Jeffrey Gibson in Morgan Superior Court of Attempted Auto Theft, ² Receiving Stolen Property, ³ Resisting Law Enforcement, ⁴ and of Public Intoxication. ⁵ Gibson was sentenced to three years for Attempted Auto Theft, three years For Receiving Stolen Property, one year for Resisting Law Enforcement, and thirty days for Public Intoxication. The sentences for Attempted Auto Theft and Receiving Stolen Property were made to run consecutively; the sentences for Resisting Law Enforcement and Public Intoxication were made to run concurrently with the sentence for Receiving Stolen Property.

Gibson appealed his convictions for Attempted Auto Theft and Receiving Stolen Property. The Court of Appeals affirmed both convictions. Gibson v. State (1993), Ind.App., 622 N.E.2d 1050. Gibson now petitions to transfer the decision of the Court of Appeals on the sole issue of whether Indiana's receiving stolen property statute requires some proof of a "third-party" thief.

Facts

After the incidents of April 17th, 1992 that gave rise to Gibson's conviction for Attempted Auto Theft, ⁶ the police began to look for Gibson. They went to his parents' house, where his mother said that she had just driven him to the Eagles Lounge in Mooresville. Gibson spotted the police about the same time that they spotted him on a downtown Mooresville street. Gibson fled. After a brief search of the neighborhood, the police found Gibson, arrested him, and drove him to the Mooresville Police Department for booking on the attempted auto theft charge.

When during the booking procedure officers asked Gibson to remove his belongings from his pockets, Gibson produced a wallet and $162 that was loose in his pants pocket. The police noticed a large bulge in one of Gibson's boots and asked him to remove whatever it was. Gibson refused, said "it was none of their business," and denied having anything in his boot. After a struggle, the police forcibly removed from inside Gibson's sock credit cards, bank cards, and various pieces of identification belonging to one Larry Williams.

When the police notified Williams that they had found his wallet, Williams said that although he had not reported the theft, his wallet had in fact been stolen from his car on the evening of the seventeenth while it stood parked some two hundred feet from the Eagles Lounge. Williams also said that his wallet had contained about $160 when it was stolen.

I.

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 Ann. § 35-43-4-2(b) (Burns 1985). The State charged by information that Gibson "did knowingly retain the property of Larry W. Williams ... said property having been the subject of theft." (R. 403). In addition to proving the explicit elements of the crime as set out in the statute, the State had also to prove beyond a reasonable doubt that Gibson knew that the property had been the subject of theft. Ind.Code Ann. § 35-41-2-2(d) (Burns 1985); ⁷ Stone v. State (1990), Ind., 555 N.E.2d 475, 477.

There was no evidence that anyone told Gibson that the wallet and its contents had been stolen. Indeed, the unrefuted testimony of Gibson's mother at trial was that she had driven Gibson to the Eagles Lounge on the evening of April seventeenth to pick up Gibson's father. As she was getting out of the car, she found a wallet lying on the ground. She tossed the wallet in the truck, intending to ask Gibson's father to find the wallet's owner later. When she came out of the bar with Gibson's father, Gibson was gone and so was the wallet.

The issue, then, is whether the jury could have reasonably inferred from the facts and circumstances surrounding Gibson's possession that Gibson knew that the wallet had been stolen. Cochran v. State (1970), 255 Ind. 374, 377-78, 265 N.E.2d 19, 21; Fletcher v. State (1961), 241 Ind. 409, 415, 172 N.E.2d 853, 857; Wertheimer & Goldberg v. State (1929), 201 Ind. 572, 580-82, 169 N.E. 40, 43; Byrd v. State (1992), Ind.App., 605 N.E.2d 231, 234; Hunt v. State (1992), Ind.App., 600 N.E.2d 979, 980. The test of knowledge is not whether a reasonable person would have known that the wallet had been the subject of theft but whether, from the circumstances surrounding his possession of the wallet, Gibson knew that it had been the subject of theft. Cochran, 255 Ind. at 377-78, 265 N.E.2d at 21; Hunt, 600 N.E.2d at 980; Stone, 555 N.E.2d at 477.

When reviewing a case that is essentially circumstantial, an appellate court asks whether reasonable minds could reach the inferences drawn by the jury. Kizer v. State (1982), Ind., 437 N.E.2d 466, 467; Bruce v. State (1978), 268 Ind. 180, 251, 375 N.E.2d 1042, 1080, reh'g denied, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (1978). The Court of Appeals concluded that there was sufficient circumstantial evidence to support a reasonable inference of knowledge. The circumstances listed by the Court of Appeals supporting an inference of knowledge were: 1) the wallet was in fact stolen; 2) Gibson was present in the vicinity of the theft at about the time of the theft; 3) Gibson fled police; 4) Gibson was in possession of the stolen property when arrested; 5) Gibson had emptied the wallet of its contents; 6) Gibson attempted to conceal various items on his person after his arrest; and 7) Gibson physically resisted the police officers' attempts to determine what he was hiding. Gibson, 622 N.E.2d at 1055.

Possession of recently stolen property when joined with attempts at concealment, evasive or false statements, or an unusual manner of acquisition has been held sufficient to support a conviction for Receiving Stolen Property. See, e.g., Butcher v. State (1992), Ind.App., 597 N.E.2d 357, trans. denied (knowledge may be inferred from possession together with lying about cashing in coins and a change in explanation about how the coins were acquired); Griffin v. State (1978) 175 Ind.App. 469, 372 N.E.2d 497 (knowledge may be inferred from possession together with evasive answers at time of arrest and lying about manner of acquisition). See also Wertheimer, 201 Ind. at 581-82, 169 N.E. at 44, and cases cited there.

We believe that Gibson's presence in the vicinity of the theft at about the time of the theft says little, on these facts, about whether he knew the wallet had been stolen. Likewise, that Gibson fled when the police were looking for him in connection with the charge of Attempted Auto Theft is of insignificant probative value on the question of Gibson's guilty knowledge with respect to the wallet.

But Gibson did possess the wallet and its contents, which had in fact been stolen; he lied about that possession; and he went to considerable lengths to conceal the wallet's contents, including physical resistance. Therefore, the Court of Appeals was entirely correct to conclude that there was sufficient evidence from which a jury could reasonably have inferred that Gibson knew that the wallet had been the subject of theft.

II.

In reviewing Gibson's conviction for Receiving Stolen Property, the Court of Appeals held that the State is not "required to prove the presence of a third-party thief in order to convict a defendant of receiving stolen property." Gibson, 622 N.E.2d at 1054. After reviewing the evolution of the receiving stolen property statute, the Court of Appeals concluded that the "statute does not require as an element of the offense any consideration of who may have actually stolen the property." Id.

This conclusion conflicts with the holdings of the Court of Appeals in three other recent cases. In Hunt, the court concluded that the "gravamen" of the crime of receiving stolen property is "the defendant's guilty knowledge that the property had been stolen by another." 600 N.E.2d at 980. Similarly, in Walden v. State (1989), Ind.App., 538 N.E.2d 288, 291, trans. denied, the court determined that "proof that the defendant was the actual thief will defeat the charge" of receiving stolen property. In Byrd, the Court of Appeals explicitly followed Hunt and Walden. Byrd, 605 N.E.2d at 234.

Furthermore, the Court of Appeals holding in Gibson also conflicts with a 1967 decision of this Court in which we also held that the actual thief could not be prosecuted for receiving stolen property. Coates v. State (1967), Ind., 249 Ind. 357, 229 N.E.2d 640.

After lengthy consideration, we have concluded that the Court of Appeals holding in Gibson is correct and disapprove Walden, Hunt, and Byrd on this issue. Our Court's earlier holding on this issue is distinguished on the basis that it was decided under a prior statutory scheme.

Evolution of the Statute.

Three major changes to the statutes governing the crimes of "theft" and "receiving stolen property" are relevant to our inquiry. We begin with the statutory definitions of "theft" and "receiving stolen property" as enacted by the 1963 legislature (the "1963 Act"). The 1963 Act read in relevant part:

Theft in general. A person commits theft when he

(1) knowingly:

(a) obtains or exerts unauthorized control over the property of the owner ...

....

(d) obtains control over stolen property, knowing the property to have been stolen by another....

1963 Ind. Acts (ss), ch. 10, § 3. ⁸ Subsection (d) covers, of course, "receiving...