State v. Anderson

• Decision Date: 07 July 1987
• Citation: 738 S.W.2d 200
• Parties: STATE of Tennessee, Appellee, v. Archie ANDERSON, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 200

738 S.W.2d 200

STATE of Tennessee, Appellee, v. Archie ANDERSON, Appellant.

Court of Criminal Appeals of Tennessee at Knoxville.

July 7, 1987.

Permission to Appeal Denied by

Supreme Court Oct. 5, 1987.

Lawrence Nickell, Jr., Wartburg, for appellant.

W.J. Michael Cody, Atty. Gen., Gordon W. Smith, Asst. Atty. Gen., Nashville, Charles E. Hawk, Dist. Atty. Gen., Mike Pemberton, Asst. Dist. Atty. Gen., Kingston, D. Roger Delp, Asst. Dist. Atty. Gen., Loudon, for appellee.

OPINION

SCOTT, Judge.

The appellant was convicted of concealing stolen property valued at under $200.00, for which he received a sentence of two years in the state penitentiary as a Range I, standard offender. After service of sixty days in the Morgan County Jail, he will be placed on probation for one year and ten months. On appeal he has presented two issues. He challenges the sufficiency of the convicting evidence and contends that the property was illegally seized by law enforcement officers.

On July 26, 1985, the Sheriff of Morgan County received information that a stolen tool box and its contents of tools could be found at the appellant's home. The sheriff went to investigate and the appellant came to the door. Through the door the sheriff could see a tool box which matched the description of the one for which he was looking. He asked the appellant if he could see it, and the appellant asked the sheriff if he had a search warrant. When the sheriff told him that he did not, the appellant told him that he could not see it. The sheriff then left an officer at the appellant's home and proceeded to get the search warrant. The sheriff returned to the appellant's home with the warrant and conducted his search. The tool box turned out not to be the box of tools for which he was looking. Near the tool box in the appellant's living room floor there were two chain saws, one of which had the serial number obliterated. A check with the National Crime Information Center revealed that the other chain saw had been reported stolen from John Wheeler in Fentress County, Tennessee. Mr. Wheeler testified that the chain saw disappeared from his front porch in late July 1984. The chain saw with the obliterated serial number was never identified as stolen. Although the appellant was charged with possession of a chain saw without a serial number, he was acquitted of that charge.

The appellant presented two witnesses. The deputy sheriff, who guarded his house while the sheriff went for the warrant, testified that nothing was brought into or taken from the appellant's home during that time. A small engine repairman examined the chain saw without the serial number for the sheriff. He testified that it had no serial number because the part on which the number should have appeared was a factory replacement part, manufactured without a number.

A jury verdict of guilty, approved by the trial judge, accredits the testimony of the state's witnesses and resolves all conflicts in favor of the theory of the state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn.1978). On appeal the state is entitled to the strongest legitimate view of the evidence and all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

The elements of concealing stolen property are that (1) the goods were feloniously taken or stolen from the owner; (2) the defendant knew or should have known that the goods were stolen; (3) the defendant fraudulently concealed or aided in concealing the stolen goods; (4) the defendant intended to permanently deprive the true owner of the rightful possession of his goods; and (5) the goods were of some value. T.P.I.--Crim. § 28.04.

The proof is clear that the goods were feloniously stolen from their owner by someone. Furthermore, there is no doubt that the appellant concealed the stolen chain saw. Concealing stolen property does not require an actual hiding or secreting of the property. It is sufficient to show that acts were performed which rendered its discovery more difficult and prevented identification or which assisted the thief in converting the property to his own use. State v. Hatchett, supra. The appellant kept the chain saw inside his home. This was an act which rendered its discovery more difficult and prevented its identification. Furthermore, it is clear that he intended to keep the saw, thus depriving the true owner of his property. What is not clear is whether the defendant knew or should have known that the chain saw was stolen.

Tennessee applies the objective test in determining whether a defendant charged with concealing stolen goods knew or had knowledge of the theft. The existence of guilty knowledge is to be regarded as established when the circumstances surrounding the receipt of the property were such as would charge a reasonable man with notice or knowledge or would put a reasonable man upon inquiry which, if pursued, would disclose that conclusion. Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115, 117 (1967). There is no proof in the record concerning the circumstances under which the appellant received the chain saw.

The unexplained possession of recently stolen property gives rise to the inference, in light of the surrounding circumstances, that the person in possession knew that the property was stolen. The term "recently" is a relative term and has no fixed meaning. Whether property may be considered as "recently" stolen depends upon the nature of the property and all of the facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may reasonably be drawn from unexplained possession. Bush v. State, 541 S.W.2d 391, 397, n. 5 (Tenn.1976).

An excellent annotation concerning what constitutes "recently" stolen property within the rule inferring guilt from the unexplained possession of such property is found at 89 A.L.R.3d 1202. Although no Tennessee cases are cited, numerous cases are annotated from jurisdictions across the country. The cases note, as our Supreme Court did in Bush, that "recency" does not merely connote a specific time lapse, but depends on all the facts and circumstances of each case, 89 A.L.R.3d at 1209, citing numerous cases from the United States Courts of Appeals and state appellate courts.

The purpose of the recency requirement with respect to the inference of guilt is to insure that the party found in possession of the stolen property is aware of the stolen nature of the goods in his possession. Courts have recognized that the proper test of "recency" is whether the time lapse between the theft and the accused's possession of the property is sufficiently short, given the circumstances of the case, to preclude the possibility of a transfer of the stolen property from the thief to an innocent party, 89 A.L.R.3d at 1212, also citing numerous cases.

While the actual amount of time that elapsed between the theft and the discovery of the property is a prime consideration in determining whether the property was "recently" stolen, a number of courts have also pointed to the characteristics of the stolen property, such as salability and portability, both of which affect the ease with which the property can be transferred by a thief to an innocent party. These factors have a significant impact on the reliability of any inference to be drawn from the possession of such property. Numerous cases are cited in which the courts held that the characteristics of the stolen property are relevant circumstances that must be considered in determining whether the possession is sufficiently recent to raise an inference of guilt, 89 A.L.R.3d at 1213, citing numerous cases. This is in accord with our Supreme Court's holding that "the nature of the property" may be considered in determining whether the property was "recently" stolen. Bush v. State, supra.

The annotation then examines the application of the rule to particular types of stolen property, including automobiles, bicycles, motorcycles, cash, rare coins, checks, money orders, clothing, shoes, electrical and electronic equipment, fabric, guns, harnesses, saddles, jewelry, watches, livestock, heavy machinery, securities, tools, tires, postage stamps, elastic, scissors, tobacco, china, antiques, a statue, a quantity of whiskey, office equipment, wastepaper, reels of copper wire, motor vehicle registration documents, a driver's license, a table, post cards, post office keys, an automobile bumper, traps, a boat hook, a quantity of tin, a feather bed, bedclothes, and "trinkets." 89 A.L.R.3d at 1216-1242. No cases involving a chain saw are specifically set forth in the annotation. "Tools" is the classification within the annotation into which a chain saw falls.

The cited cases include an engineer's transit which was found in the defendant's possession. The court noted that the exclusive possession of such an item some twenty-five days after the theft was sufficiently recent possession to warrant a conviction on the basis of the inference of guilt derived from possession of recently stolen property. The court noted that a transit would not readily pass from hand to hand, but would be an item that would be difficult to dispose of. People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551, 557 (1959).

A lapse of one week between the date of the theft of a lawnmower and the discovery that the defendant was in possession of the lawnmower supported the inference that the defendant had stolen it. The court also observed that he had transported the lawnmower to a location where a ready sale was a high probability and that he had also transported and sold stolen furniture. Ward v. State, 260 Ind. 217, 294 N.E.2d 796, 798 (1973).

Two weeks intervened between the theft of electric clippers from a barber shop and their discovery in the possession of the defendant. Such possession was held to be "obviously recent" within the meaning of the...