Sims v. State, 3-685A160

CourtCourt of Appeals of Indiana
Citation482 N.E.2d 1182
Docket NumberNo. 3-685A160,3-685A160
PartiesJohn Lee SIMS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
Decision Date26 September 1985

Edward C. Hilgendorf, South Bend, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

John Sims was convicted in a jury trial of theft pursuant to IND.CODE Sec. 35-43-4-2(a) which defines theft as knowingly or intentionally exerting unauthorized control over property of another person with intent to deprive that person of any part of its value or use.

On appeal, Sims presents two issues for review:

(1) whether the trial court erred in charging the jury in accordance with State's Instruction No. 3 and

(2) whether there was sufficient evidence to support the verdict of the jury.

Only the first issue will be addressed.

Appellant alleges the trial court erred in instructing the jury in accordance with State's Instruction No. 3 which reads:

"The exclusive possession of stolen property soon after a theft has been committed, if not explained to the satisfaction of the jury, may raise an inference that the person in possession of such stolen property is guilty of the theft charged. The inference of guilt does not arise from the mere possession of the property stolen, but arises from the fact of its possession shortly after it has been stolen coupled with the absence of a satisfactory explanation, or of anything tending to show that such possession is or may be consistent with innocence. In this case, evidence has been presented by the State showing that certain goods, allegedly taken by a larceny from Polk Tire Service, were in the possession of the defendant shortly after the alleged theft."

Appellant objected to Instruction No. 3 at trial, in his motion to correct error and again on appeal on the grounds it is an State's Instruction No. 3 is taken from Freeman v. State (1967), 249 Ind. 211, 231 N.E.2d 246, as is indicated in the trial record and in the appeal briefs. The appellant correctly states that Instruction No. 3 is only the first part of an instruction approved in Freeman. The second part of the Freeman instruction indicated the evidence presented by both the state and the defendant and instructed the jury as to the necessity of examining all the evidence in making a determination. Freeman v. State, supra, 249 Ind. at 218, 231 N.E.2d at 251. In light of the fact the challenged instruction is not the complete instruction approved in Freeman, and that similar instructions have been frequently considered by the Indiana appellate courts since the 1967 Freeman decision, other case law is more relevant to the issue.

incorrect statement of the law as applied to the present case and is a comment on the evidence. Sims argues that the failure of the instruction to call the jury's attention to the defendant's explanation of possession renders the instruction incorrect, misleading and reversible error.

The approved instruction concerning exclusive possession of stolen goods for cases involving unauthorized control theft, IND.CODE Sec. 35-43-4-2(a), is:

" 'The unexplained exclusive possession of a defendant of recently stolen property is a circumstance which may be considered with the other facts and circumstances of the case in determining the guilt or innocence of the accused. However, the mere possession of stolen goods, standing alone, is insufficient to support a conviction; and the defendant cannot be convicted on the basis of evidence of mere possession of stolen goods alone. If you should find from the evidence, beyond a reasonable doubt, that a burglary [theft] was in fact, committed on the premises involved in the case, and that within a short period of time thereafter the defendant himself or with others was found in the unexplained exclusive possession of property identified by the evidence as that stolen from the premises, you may consider such circumstances in arriving at your verdict in this case. However, no presumption of guilt of theft is made or arises against the defendant merely by reason of his exclusive possession of goods which have been unlawfully taken within a short period of time beforehand if such be the case. Proof of the commission of the offense must be made beyond a reasonable doubt by the State, and the defendant has no burden to account for or explain his possession of the goods; but the burden of proving his guilt beyond a reasonable doubt rests entirely upon the State; and you would not be warranted in finding the defendant guilty unless all of the elements of the offense charged have been proved by the evidence beyond a reasonable doubt.' "

Hughes v. State (1983), Ind.App., 446 N.E.2d 1017, 1019-1020.

This instruction was originally approved by the Supreme Court of Indiana as a correct statement of Indiana law in Gann v. State (1971), 256 Ind. 429, 269 N.E.2d 381, reh. denied. This is the only exclusive possession instruction the Supreme Court has actually approved. In Sansom; Murphy v. State (1977), 267 Ind. 33, 366 N.E.2d 1171 (Sansom overruled on other grounds, Elmore et al. v. State (1978), 269 Ind. 532, 382 N.E.2d 893), the Court considered an instruction similar to Instruction No. 3. In that case, however, the Court gave no definitive answer on such an instruction, the instruction being neither approved nor disapproved by a majority of the Court. In Sansom a majority held only that the giving of the instruction did not constitute fundamental error and required an objection at trial to preserve the issue for appeal.

State's Instruction No. 3 is a verbatim portion of the instructions challenged and found to be erroneous in Abel v. State (1975), 165 Ind.App. 664, 333 N.E.2d 848, 852; Underwood v. State (1977), 174 Ind.App. 199, 367 N.E.2d 4, reh. denied, modified in part by Sansom; Murphy v. State "The jury, in its deliberations, should consider the evidence offered by State in the light of all the other evidence in the case, giving such credence to witnesses and such weight to the evidence as the jury believes is warranted."

                supra, 267 Ind. 33, 366 N.E.2d 1171; 1  and Phillips et al. v. State (1978), 177 Ind.App. 10, 377 N.E.2d 666, 668.  The instruction condemned in Underwood was the same as Instruction No. 3 challenged here except there was no reference to the evidence submitted by the State.  In that case, the instruction was found to impermissibly shift the burden of proof to the defendant in violation of fundamental due process.  The instructions disapproved in Abel and Phillips contained two parts.  The first part was the same as Instruction No. 3 in the present case.  The second part stated
                

Abel v. State, supra, 165 Ind.App. at 671, 333 N.E.2d at 852;

Phillips v. State, supra, 177 Ind.App. at 13, 377 N.E.2d at 668.

In Abel the instruction was found to be a comment on the...

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1 cases
  • Gamblin v. State
    • United States
    • Indiana Appellate Court
    • March 26, 1991
    ...the instruction by failing to tender a written instruction to correct the error. The State acknowledges the existence of Sims v. State (1985), Ind.App., 482 N.E.2d 1182, reh'g denied, 489 N.E.2d 957, trans. denied (stating objecting to a given instruction is necessary and sufficient to pres......

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