Shields v. State, 92-KA-01067-SCT

Decision Date27 February 1997
Docket NumberNo. 92-KA-01067-SCT,92-KA-01067-SCT
Citation702 So.2d 380
PartiesJoseph E. SHIELDS v. STATE of Mississippi.
CourtMississippi Supreme Court

James D. Minor, Oxford, for appellant.

Michael C. Moore, Attorney General, Laura Hogan Tedder, Special Assistant Attorney General, Oxford, for appellee.

En Banc.

BANKS, Justice, for the Court:

The matter before the Court involves an appeal from a conviction of burglary where we are called upon to decide whether proof of possession of stolen articles, without more, is sufficient to convict a person for the crime of burglary. We conclude that the possession of stolen articles, standing alone, may be sufficient to satisfy the beyond a reasonable doubt standard given sufficiently probative circumstances of possession. Accordingly, we affirm.

I.

Officer Calvin Sellers testified that after returning home in Lafayette County, Mississippi from a wedding around 1:00 PM on February 1, 1991, he noticed that the front door of his house was left standing open. Later that afternoon, when his sons returned home from school, he requested that they see if they noticed anything missing around their rooms. One of the sons discovered that he had four guns missing out of his room. The four guns were a .410 gauge shotgun, a 20 gauge single shotgun, a B.B. Gun, and a bolt action 30-6 army surplus gun.

The authorities were notified, and the house was dusted and examined for fingerprints and footprints. No solid fingerprints were found, and the footprints were not matched with the defendant's. However, a call was received by the Batesville authorities from a Batesville pawn shop regarding the purchase of the guns. The guns had been offered to the pawn shop on the same day they were stolen. Officer Sellers and his sons identified two of the guns bought by the pawn shop. The third gun, identified by Sellers as stolen, was recovered at the pawn shop but the record is unclear as to how it came to be there.

Mr. Doyle Pearson, the owner of the Batesville pawn shop, testified that the defendant, Joseph E. Shields, sold him two of the guns and offered the third for sale. He testified that he was not interested in the army rifle but gave no indication as to whether Shields left it with him anyway. He stated that the defendant told him that he bought and sold guns all the time. After buying the two shotguns, Pearson notified the Batesville authorities.

On March 29, 1991, Joseph E. Shields was indicted on for the burglary of the dwelling of Officer Calvin Sellers. He was subsequently arrested. During the trial proceedings, the State presented four witnesses. After the State rested, the defense moved for a dismissal of the indictment and in the alternative for the directed verdict or judgment of acquittal as a result of the State's failure to establish a prima facie case and sustain its burden of proof. The trial court overruled the motion and the defense called no witnesses on its behalf.

After the jury returned from deliberation with a verdict of guilty, the trial court sentenced Shields as a habitual criminal to a term of ten years without parole. The trial court also found Shields in direct contempt of court and sentenced Shields to serve ten days in county jail for his conduct during the pretrial hearing on January 6, 1992, and one hundred twenty days in jail for his conduct during the post trial motion hearing on July 13, 1992. On appeal, the defendant asserts three assignments of error: (1) the trial court committed error by not granting him a preliminary hearing; (2) the trial court erred in allowing the jury's inference of guilt from the mere possession of stolen property to be sufficient for a conviction for the crime of burglary; and (3) the trial court erred in finding the defendant in direct contempt of the court.

II.
a.

The defendant asserts that the trial court committed error by allowing the jury to infer guilt solely from the defendant's possession of the stolen guns. He further asserts that this inference is not sufficient to support a conviction for the crime of burglary.

Shields was convicted of burglary under Miss.Code Ann. § 97-17-19 (1972), which states that "any person who shall be convicted of breaking and entering any dwelling house, in the day or night, with intent to commit a crime, shall be guilty of burglary, and be imprisoned in the penitentiary not more than ten years." Miss.Code Ann. § 97-117-19 (1972).

In Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990) this Court held that "[m]ere possession of stolen articles, by itself, is not enough to convict a person for the crime of burglary." We distinguished prior cases in this area which might appear inconsistent with that view. We pointed out that in Toncrey v. State, 465 So.2d 1070 (Miss.1985), there was flight as well as an offer to lead authorities to other stolen items as corroborative evidence of guilt. Id. at fn. 2. As for Rushing v. State, 461 So.2d 710 (Miss.1984), this Court noted that the issue there raised concerned the definition of "recent" within the doctrine giving inferential weight to "recent possession." Id. We also noted that in both of these cases, the appellants had offered no explanation whatever.

The decisions of other jurisdictions can be helpful in analyzing this issue. In Indiana, the state's Supreme Court ruled in Giles v. State, 162 Ind.App. 639, 320 N.E.2d 806 (1974), that "unexplained exclusive possession of recently stolen goods may constitute a circumstance from which the trier of fact may draw an inference of guilt, and may support a conviction of second degree burglary where other evidence is adduced to link the defendant with the crime." Id. at 643, 320 N.E.2d at 808 (emphasis supplied). In Oklahoma, the State Supreme Court held in Jones v. State, 468 P.2d 805 (Okla.Crim.App.1970), that "the mere possession of property recently stolen is not sufficient to convict the possessor of Larceny or Burglary of it, but when the fact is supplemented with other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to pass upon guilt or innocence of the defendant." Id. at 807. The Supreme Court of Pennsylvania has announced that "[c]learly, evidence of possession of stolen property may be relevant in deciding whether the possessor is the one who stole it. However, as in a case of receiving stolen property, it is only one piece of evidence, and evidence of possession alone is not sufficient to prove burglary or larceny beyond a reasonable doubt." Commonwealth v. Simmons, 233 Pa.Super. 547, 558, 336 A.2d 624, 630 (1975).

This is a circumstantial evidence case. It follows that the test to be applied in considering the sufficiency of the proof is whether a rational fact finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged. Deloach v. State, 658 So.2d 875, 876 (Miss.1995); Murphy, 566 So.2d at 1204; Vick v. United States, 216 F.2d 228 (5th Cir.1954). Put another way, "[i]f the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt." Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985)

In a case quite similar to that before the court, the Eleventh Federal Circuit observed that where "the most that we can say from the bare fact of possession and pawning of the stolen camera a day or two after the burglary is that it gives equal support to an inference of burglary and an inference that [of] fencing stolen goods." There is "not enough to support a burglary conviction." Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir.1982).

The Cosby Court adopted a standard with reference to the cases involving the inference to be drawn from possession of recently stolen property which is in keeping with the jurisprudence of this state as analyzed in Murphy. That is, "the inference of participation in the crime drawn from possession of the fruits of the crime is to be judged like any other inference, that is, on the strength of that inference in the light of the facts of each particular case." Cosby, 682 F.2d at 1380. The circumstances of possession and the presence or absence of evidence of participation in the crime other than mere possession must be viewed. Id. at 1380, 1382-83.

Extrapolating from that case we can arrive at common sense circumstances to be considered:

1. The temporal proximity of the possession to the crime to be inferred;

2. The number or percentage of the fruits of the crime possessed;

3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;

4. Whether an explanation is given and whether that explanation is plausible or demonstrably false. 1

Id.; see also West v. Wright, 931 F.2d 262 (4th Cir.1991), rev. on other grounds, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). In the instant case, the inference must gain strength from the circumstances of possession as there exist no other corroborating evidence.

The first factor, the temporal proximity of possession, lends great strength to the inference that Shields committed the burglary. There is evidence that Shields possessed fruits of the burglary on the same day of the burglary. The second factor also lends strength. Three of the four items taken were identified in Shields' possession. The third factor detracts from the inference. Shields sold these guns, bearing serial numbers, in his own name without any attempt to hide his identity. Finally, the fourth factor lends strength to the inference, since Shields offered no explanation whatever. Although there is evidence that he told the pawnbroker that he bought and sold guns all of the time, there is no indication that he bought these guns or acquired them in any other manner. The Cosby...

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