State v. Ketchum

• Decision Date: 05 May 1997
• Docket Number: Docket No. HAN-95-589
• Citation: 694 A.2d 916
• Parties: STATE of Maine v. Thomas KETCHUM. Law
• Court: Maine Supreme Court

Page 916

694 A.2d 916

1997 ME 93

STATE of Maine v. Thomas KETCHUM.

Law Docket No. HAN-95-589.

Supreme Judicial Court of Maine.

Submitted on Briefs Dec. 4, 1996.

Decided May 5, 1997.

Michael E. Povich, Dist. Atty., Dennis E. Smith, Asst. Dist. Atty., Ellsworth, for State.

Rosemarie Giosia, Ellsworth, for Defendant.

Before ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

CLIFFORD, Justice.

¶1 Thomas Ketchum appeals from the judgment entered in the Superior Court (Hancock County, Mead, J.) on a jury verdict finding him guilty of theft by unauthorized taking (Class C) ¹ in violation of 17-A M.R.S.A. § 353 (1983). ² Because we agree with Ketchum's contention that the evidence is insufficient to support the conviction, we vacate the judgment.

¶2 The testimony at trial revealed the following facts: on July 28, 1994, William Haefele, operator of the Country Store in Trenton, reported to the Hancock County Sheriff's Office that fifteen to eighteen Emmett Kelly figurines had been stolen from his gift shop within the previous two days. On July 29, just after lunch, Haefele reported that eight additional figurines had been stolen from his shop on that day.

¶3 As the police were responding to Haefele's second complaint, Lincoln Fenno, a registered dealer of Emmett Kelly figurines located in Bar Harbor, called the sheriff's office at approximately 4:00 p.m. Fenno provided a description of a vehicle whose passengers had been acting suspiciously in his store a few moments earlier. At trial, Fenno identified Ketchum as one of the individuals. Fenno's description was placed over the police dispatch and received by Sergeant Scott Kane. After hearing the description, Scott Kane searched for the vehicle and spotted it leaving Bar Harbor at approximately 5:00 p.m. Scott Kane followed the vehicle into a supermarket parking lot and noticed three individuals in the vehicle later identified as Michael Curtis, Wayne Paschal and Ketchum. Scott Kane testified that he questioned Ketchum, who was sitting in the front passenger seat. Ketchum stated that he had been in the Bar Harbor area with the other two but that he had not done any shopping or been in any stores. Another officer who was on the scene then noticed the stolen objects in two brown bags in the back of the vehicle and alerted Scott Kane. When questioned about the stolen figurines in the vehicle, Ketchum denied knowing anything about the bags. Ketchum stated that his companions had been in stores shopping but that he did not know what they had purchased.

¶4 As Scott Kane was questioning Ketchum, another officer, Sergeant Patrick Kane, had approached the driver of the vehicle, Michael Curtis, and had begun to question him. Patrick Kane obtained consent from Curtis to search the vehicle and located the eight Emmett Kelly figurines missing from Haefele's store. During the investigation, Scott Kane questioned Tara Hart, a clerk at the Country Store, who recalled a suspicious couple being in the store on Sunday, July 25. She identified the couple as Curtis and his girlfriend.

¶5 Curtis also consented to a search of his home in Bangor. Ketchum rented a second floor bedroom from Curtis. The search of Curtis's residence produced eleven more Emmett Kelly figurines stolen from the Country Store. The figurines were located in the living room on the first floor of Curtis's home. Haefele testified that the value of the eight figurines recovered was $736.60, and that the eleven figurines were worth over $1,000.00.

¶6 At the trial, Ketchum moved for a judgment of acquittal after the State rested and after both parties finally rested. The court denied both motions. Ketchum also objected to jury instructions regarding accomplice liability and recent exclusive possession. This appeal followed the jury verdict finding Ketchum guilty of a Class C theft.

I

¶7 Ketchum contends that the court erred in failing to grant his motion for a judgment of acquittal. He argues that there was no evidence that he was guilty of theft by unauthorized taking as the principal or an accomplice or that he was in exclusive possession of recently stolen property. ³ While he concedes that the figurines were stolen, Ketchum argues that the only evidence linking him to those figurines is his presence in Curtis's vehicle on July 29, and that he and Curtis shared the same residence. When examining the sufficiency of the evidence, we review the evidence in the light most favorable to the State to determine whether a trier of fact rationally could find beyond a reasonable doubt every element of the offense charged. State v. Marden, 673 A.2d 1304, 1311 (Me.1996).

¶8 In defending the jury's verdict finding Ketchum guilty of theft, the State contends that the evidence was sufficient to hold Ketchum responsible for the theft as an accomplice, pursuant to 17-A M.R.S.A. § 57 (1983).

¶9 17-A M.R.S.A. § 57 provides in part:

1. A person may be guilty of a crime if it is committed by the conduct of another person for which he is legally accountable as provided in this section.

2. A person is legally accountable for the conduct of another person when:

....

C. He is an accomplice of such other person in the commission of the crime, as provided in subsection 3.

3. A person is an accomplice of another person in the commission of a crime if:

A. With the intent of promoting or facilitating the commission of the crime, he solicits such other person to commit the crime, or aids or agrees or attempts to aid such other person in planning or committing the crime....

17-A M.R.S.A. § 57 (1983).

¶10 Ketchum's presence in a vehicle that contained some of the stolen items is not sufficient evidence on which to hold Ketchum responsible as an accomplice to theft. See State v. Carter, 391 A.2d 344, 347 (Me.1978) (mere presence as passenger in vehicle driven by robbery suspect and containing instrumentalities of crime insufficient to sustain verdict of defendant's guilt as accomplice to robbery).

¶11 Viewing the evidence in this case in the light most favorable to the prosecution, a trier of fact could not avoid having a reasonable doubt that Ketchum was an accomplice to theft. The testimony revealed that Ketchum drove to Bar Harbor with Curtis and Paschal and was with them when the eight stolen figurines were recovered. The stolen figurines were found in the back seat of Curtis's vehicle in which Ketchum was riding in the front passenger seat. There was no evidence that placed Ketchum at the scene of the crime, the Country Store, or that he performed any role, such as a lookout, see State v. Robert M., 588 A.2d 1202, 1202 (Me.1991), nor was there any evidence that he helped carry away the stolen items. See State v. Lee, 451 A.2d 313, 315 (Me.1982).

II

¶12 The State also contends that the jury verdict can be sustained on the basis that Ketchum was in exclusive possession of the recently stolen property which gives rise to the presumption set out in 17-A M.R.S.A. § 361(2) (1983), that Ketchum is guilty of theft. That section provides in part:

2. Proof that the defendant was in exclusive possession of property that had recently been taken under circumstances constituting a violation of this chapter ... shall give rise to a presumption that the defendant is guilty of the theft ... of the property....

To gain the benefit of the statutory presumption, where, as in this case, there is no evidence of actual physical possession of the stolen goods by the defendant, the State must produce evidence establishing that: (1) the defendant constructively possessed the stolen goods; (2) there was other possessive conduct on the part of the defendant in relation to the stolen goods; and (3) the stolen goods were "recently taken." State v. DePhilippo, 628 A.2d 1057, 1060 (Me.1993). ⁴

¶13 Constructive possession means that although one does not have actual physical control of the goods he "has dominion and control over them." Id. (quoting State v. Durgan, 467 A.2d 165, 167 (Me.1983)). The evidence pertaining to Ketchum's constructive possession of the stolen property is insufficient. Ketchum's mere presence in Curtis's vehicle, where some of the stolen items were found, is insufficient evidence to establish Ketchum's constructive possession of those items. In State v. Dall, 305 A.2d 270 (Me.1973), stolen property was found in a bag partially under the seat in the vehicle that defendant was occupying. Even though the defendant was seen bending forward in that seat just prior to the vehicle being stopped, we concluded that there was insufficient evidence to prove possession of the stolen items beyond a reasonable doubt. Id. at 272. We stated "[t]here are simply too many rational hypotheses explanatory of such a sudden movement which are consistent with a lack of control or possession of the stolen property." Id.; see also State v. Mosher, 270 A.2d 451 (Me.1970). In this case, Ketchum was present in the vehicle but was not occupying the seat where the figurines were found and there was no evidence of any furtive, suspicious movement on his part at or just prior to the time of the stop.

¶14 The discovery of eleven figurines in the living room on the first floor of Curtis's home where Ketchum was a tenant is likewise insufficient on which to base a finding of constructive possession. The room rented by Ketchum was on the second floor. The only evidence offered on Ketchum's use of the premises was that his possessions were located solely in the bedroom that he rented on the second floor. This case differs from State v. DePhilippo, 628 A.2d 1057, 1060 (Me.1993), and State v. Robinson, 561 A.2d 492, 495 (Me.1989), where stolen goods found at a location owned solely by the defendant supported a finding of guilt premised on constructive possession.

The judgment is:

Judgment vacated. Remanded for entry of judgment of acquittal.

GLASSMAN, RUDMAN and DANA, JJ., concur.

ROBERTS and LIPEZ, JJ., dissent.

LIPEZ, Justice, with whom ROBERTS, Justice,...