Jackson v. Com.

• Decision Date: 16 February 1984
• Citation: 670 S.W.2d 828
• Parties: Jerry JACKSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Stanley LEMONS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Larry Joe RIGGSBEE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 828

670 S.W.2d 828

Jerry JACKSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Stanley LEMONS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Larry Joe RIGGSBEE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

Feb. 16, 1984.

Rehearings Denied July 5, 1984.

Jack Emory Farley, Public Advocate, Frankfort, for appellant Lemons; Nan Shelby Calloway, Bowling Green, of counsel.

Jack Emory Farley, Public Advocate, William M. Radigan, Asst. Public Advocate, Frankfort, for appellants Jackson and Riggsbee.

Steven L. Beshear, Atty. Gen., Paul E. Reilender, Jr., David A. Smith, Asst. Attys. Gen., Frankfort, for appellee.

VANCE, Justice.

These appeals arise from the conviction of each of the appellants who were indicted separately but were tried jointly. As to appellant Jackson, an appeal is taken from his conviction on three counts of burglary, ten counts of theft by unlawful taking, and ten counts of knowingly receiving stolen property. He was sentenced to life imprisonment on each of the burglary charges, the three life sentences to run concurrently. He was also sentenced to imprisonment for ten years on each of the ten counts of theft by unlawful taking and the ten counts of knowingly receiving stolen property. These sentences were directed to run consecutively with each other and with the life sentences.

As to the appellant Riggsbee, an appeal is taken from Riggsbee's conviction on four counts of burglary, 13 counts of theft by unlawful taking, and 13 counts of knowingly receiving stolen property. He was sentenced as a persistent felony offender to life imprisonment on each of the burglary charges, the sentences to run concurrently. He was also sentenced to imprisonment for 20 years on each of the 13 counts of theft by unlawful taking and the 13 counts of knowingly receiving stolen property. These sentences were ordered to run consecutively to each other and to the life sentences.

As to the appellant Lemons, the appeal is from his conviction on one count of theft by unlawful taking and one count of knowingly receiving stolen property. He was sentenced as a persistent felony offender to imprisonment for 20 years on each count.

All of the charges resulted from the investigation of a series of burglaries in Warren County, Kentucky, and neighboring counties. The appellants Jackson and Riggsbee sold a number of guns and other items stolen from several of the burglarized homes to an undercover police agent. Appellants Lemons and Riggsbee sold three items which had been stolen from one of the burglarized homes to the same agent.

The separate indictments were tried together in the trial court, and the three separate appeals were consolidated for oral argument in this court. Each of the appeals will be disposed of in this opinion. Because the issues raised are numerous and because some of the appellants raise issues different from the others, we will discuss each appeal separately.

THE JACKSON APPEAL OF BURGLARY CONVICTIONS

Jackson has appealed his conviction of burglary in the first degree of the dwellings of William Sadler, Roger Stice, and Robert Moore. Each of these three individuals testified that their homes had been broken into, that a quantity of guns and other articles had been stolen and that no person had been given permission to enter their homes and take the articles which were stolen.

Some of the articles stolen from each home were sold by Jackson to a police undercover agent. This officer stated that Jackson told him the articles belonging to William Sadler were taken from a house "down the road" and that the articles taken from Roger Stice and Robert Moore were "hot."

K.R.S. 511.020 provides that a person is guilty of burglary in the first degree when, with intent to commit a crime, he knowingly enters or unlawfully remains in a building, and when in effecting the entry or while in the building or in the immediate flight therefrom he, or another participant in the crime, is armed with explosives or a deadly weapon.

The appellant concedes the evidence is sufficient to show his knowledge that the merchandise disposed of by him was stolen, but he maintains that it was simply a flight of the imagination to infer from the evidence that he unlawfully entered a building or was armed with a deadly weapon.

One who steals a deadly weapon during the course of a burglary is armed within the meaning of K.R.S. 511.020. Meadows v. Commonwealth, Ky.App., 551 S.W.2d 253 (1977); Daugherty v. Commonwealth, Ky., 572 S.W.2d 861 (1978).

The possession of stolen property is prima facie evidence of guilt of theft of the property. Wheeler v. Commonwealth, 295 Ky. 28, 173 S.W.2d 817 (1943); Martin v. Commonwealth, Ky., 276 S.W.2d 19 (1955). Where there is a breaking and entering and property taken from a dwelling and the property is found in possession of the accused, such showing makes a submissible case for the jury on a charge of burglary. Wahl v. Commonwealth, Ky., 490 S.W.2d 769 (1972). Because the evidence is sufficient to support a conviction that appellant stole the property which was taken in a break-in, it follows that the evidence supports a jury finding that said appellant committed the burglary in which the property was stolen.

The appellant contends that the rule in Kentucky which allows possession of stolen property to create a prima facie case of guilt of the theft thereof has been declared unconstitutional by the United States Supreme Court in In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

These cases clearly hold that the state is required to prove every element of a criminal offense beyond a reasonable doubt and that the burden of proof cannot be shifted to an accused by a presumption which requires him to prove his innocence. It is a long leap from this thesis to the conclusion that the rule followed in Kentucky shifts the burden of proof to the accused.

County Court of Ulster County New York v. Allen, supra; Mullaney v. Wilbur, supra; and Patterson v. New York, supra; each were cases where an instruction of the court placed a burden of proof upon the accused. In this case there was no instruction to the jury which shifted any burden to the accused. The burden of proof rested with the Commonwealth throughout the trial. Historically, it has been the law in this state that it is not unreasonable for a juror to believe that one found in possession of stolen property is guilty of the theft. The jury is not instructed to find such a person guilty unless he proves that his possession is innocent and no burden of proof is ever placed upon the accused. Indeed, if possession of stolen property is the only proof of theft, the jury may well find the accused not guilty, but because human experience has shown such a strong connection between the possession of stolen property and the theft thereof, a jury is authorized upon a showing of possession to convict of theft. This is not such a shifting of the burden of proof as is condemned in the cases cited by Jackson.

THE CHARGES OF THEFT BY UNLAWFUL TAKING

Jackson was convicted of ten counts of theft by unlawful taking. He contends that three of the thefts occurred in counties other than Warren County in which the case was tried, and therefore the trial in Warren County was improper. The venue of criminal prosecutions is the county or city in which the offense was committed. K.R.S. 452.510. Improper venue may be waived. RCr 8.26 provides that a defendant may move for a transfer of a prosecution to the proper venue if it appears that the offense was committed in a county other than that in which the prosecution is being conducted. K.R.S. 452.650 provides that the venue of a prosecution may be waived and that failure to make a timely motion to transfer the prosecution to the proper county shall be deemed a waiver of the prosecution. There was no motion here for a transfer of the prosecution to the county in which the theft occurred.

Jackson did move for a directed verdict on the ground that the offenses were not committed in Warren County. K.R.S. 452.580 provides:

"Where a person obtains property by larceny, robbery, false pretenses, or embezzlement in one county and brings the property so obtained into or through any other county, he may be tried in the county in which he obtains the property or in any other county into or through which he brings it."

Because the stolen property was brought into Warren County by appellant, Warren County was a proper venue for the prosecution and the motion for directed verdict was properly overruled.

Although objection to venue is waived by failure to move for a transfer of the prosecution, when the instructions require the jury to find, as they did here, that the offense occurred in the county of prosecution, the Commonwealth cannot contend the jury was not bound by the instructions. Chancellor v. Commonwealth, Ky., 438 S.W.2d 783 (1969); Hodges v. Commonwealth, Ky.App., 614 S.W.2d 702 (1981).

The motion for directed verdict did not raise this issue because, as we have seen, the motion for directed verdict was properly overruled. The question of whether the evidence was sufficient could only be raised as to this aspect of the case by an objection to the giving of an instruction which authorized the jury to find that the offense was committed in Warren County, Kentucky. Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525 (1977). We do not find any such objection to the instruction and appellant, in his brief, does not point out such an objection.

Jackson contends that one felony conviction of theft by unlawful taking of a radio scanner must be reversed because there was no proof of value of the scanner. This...