Tubwell v. State, 90-KA-0286

• Decision Date: 08 May 1991
• Docket Number: No. 90-KA-0286,90-KA-0286
• Citation: 580 So.2d 1264
• Parties: James TUBWELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1264

580 So.2d 1264

James TUBWELL v. STATE of Mississippi.

No. 90-KA-0286.

Supreme Court of Mississippi.

May 8, 1991.

Irene Mikell Buckley, Boyd, Buckley & Bateman, Greenville, for appellant.

Mike C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

I.

On the 22nd day of February, 1990, James Tubwell was convicted in the Circuit Court of Washington County, Mississippi, of receiving stolen property. He was subsequently sentenced to serve a term of two (2) years in the Mississippi Department of Corrections. On appeal, Tubwell contends that the evidence lacks both the sufficiency and weight to support the verdict.

II.

Robroy Fisher owns the Marathon Plantation, a farm located in Washington County approximately two (2) miles north of Glen Allen. On July 26, 1989, Tommy Miller, the farm manager for Marathon Plantation, discovered that the farm shop where certain equipment was stored had been burglarized. An inner door to a small storage room had also been the target of a similar trespass.

Two (2) forty (40) pound boxes of orthene, a farm chemical, were missing from the inner room. Items missing from the shop's main area included a large toolbox containing assorted handtools, a half inch impact wrench, and three of Miller's personal fishing rods. The large toolbox contained $1500 worth of tools and weighed 250-300 pounds. According to Miller, it takes at least two people to load it. Miller notified the Washington County Sheriff's Department, and an investigator was sent to the farm shop.

More than three (3) months later, in November of 1989, Miller was summoned to the property room at the Washington County Jail where he identified a toolbox and impact wrench as two of the items taken from the farm shop in July. Only about 10% of the handtools were still in the box, and the box itself was bent and unusable. These two items were returned to Miller and were located in the farm shop on the day of trial.

Robroy Fisher testified for the State that a couple of tools contained in the toolbox had the name of one of his employees, Mitchell Belton, stenciled on them.

Travis Jenkins, an investigator with the Washington County Sheriff's Department, testified he personally participated in the recovery of the stolen property. On a day in November, 1989, Jenkins went to Tubwell's residence in Greenville where he recovered an impact wrench and "... a toolbox full of tools with Mitchell Belton's name, Marathon Plantation, inside the lid of that toolbox that had been reported stolen." These items were returned to Tommy Miller.

At the close of the State's case-in-chief, the defendant moved for a directed verdict of acquittal on the ground the prosecution had failed to prove beyond a reasonable doubt the essential elements of the crime of receiving stolen property. The trial judge overruled the motion "in light of the fact that there is evidence that according to Mr. Jenkins, that there was written on the tools, in the toolbox, the name of Mitchell Belton and Marathon Plantation. I think that is sufficient information from which the defendant could have concluded that he was in possession of stolen property."

The defendant did not testify and rested his case without submitting any evidence in his own behalf. The jury thereafter returned a verdict of guilty as charged. Four days post-verdict, on February 26, 1990, the defendant filed a "Motion for Judgment N.O.V., or in the Alternative, for a New Trial." The gist of his motion was that the State had failed to prove its case beyond a reasonable doubt. This motion was overruled by the lower court on February 28, 1990.

III.

Tubwell argues that he should have been granted a directed verdict at the close of the State's case. "The well known rule in this state is that in passing on motions for a directed verdict or a request for a peremptory instruction, all evidence on behalf of the state must be taken as true, together with the reasonable inferences that may be drawn therefrom, and if there is sufficient evidence to support a verdict of guilty, the motion for a directed verdict must be overruled and the peremptory instruction must be denied." Thompson v. State, 457 So.2d 953, 955 (Miss.1984).

The centerpiece of Tubwell's appellate complaint is that the State failed to prove beyond a reasonable doubt the defendant received the stolen property with knowledge it was stolen. According to Tubwell, "[t]he most that can be said of the State's case is that James Tubwell had in his possession but a couple of the numerous items reported stolen from the Marathon Plantation well over three months before."

The State contends, on the other hand, that Tubwell's unexplained possession of recently stolen property, coupled with testimony reflecting the presence of certain markings inside the lid of the toolbox and on some of the remaining tools contained within the box, was sufficient to sustain his conviction of receiving stolen property.

In Whatley v. State, 490 So.2d 1220, 1222 (Miss.1986), this Court identified the elements of the crime of receiving stolen property.

Miss.Code Ann. Sec. 97-17-69 (1972) states as follows:

If a person buy or receive in any manner or on any consideration personal property of any value, feloniously taken away from another, knowing the same to have been so taken, he shall be guilty of receiving stolen goods, and, on conviction, shall be punished by imprisonment in the...