United States v. Johnson, 22311.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation433 F.2d 1160,140 US App. DC 54
Docket NumberNo. 22311.,22311.
PartiesUNITED STATES of America v. Alphonso T. JOHNSON, Appellant.
Decision Date04 September 1970

Mr. Nicholas A. Addams, Washington, D. C. (appointed by this court), for appellant.

Mr. Robert P. Watkins, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and Roger E. Zuckerman, Asst. U. S. Atty., were on the brief, for appellee.

Messrs. David G. Bress, U. S. Atty., at the time the record was filed, and Frank Q. Nebeker, Asst. U. S. Atty., at the time the record was filed, also entered appearances for appellee.

Before BAZELON, Chief Judge, and ROBINSON and ROBB, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Appellant was indicted and tried jointly with Charles W. Edwards, Jr., on three counts respectively charging grand larceny of an automobile,1 unauthorized use of that automobile,2 and grand larceny of the engine from another automobile.3 The trial, to a jury, eventuated in Edwards' acquittal on each count and appellant's conviction on all three. This appeal challenges the conviction on a number of grounds, each of which we have examined assiduously. Having done so, we find no error affecting substantial rights, and so we affirm.

I

On the morning of August 5, 1966, Samuel I. Sherwood fringe-parked his 1957 Chevrolet on a public street in upper northwest Washington, and took a bus to his worksite in the city's downtown area. When he returned about 6:00 o'clock in the evening, the car was gone and was never again seen by him. Several months thereafter, on March 28, 1967, Robert L. Oates, Jr., underwent a similar experience. On that date, he parked his 1962 Chevrolet on a street in northwest Washington, and on the following morning discovered that it was missing. Three days later, on April 1, 1967, he viewed what of his car remained intact. Many of its components, including the engine, had been removed; the vehicle had been stripped to the frame.

On the night of May 5, 1967, Officers John H. Lonien and Lawrence H. Bird halted a 1957 Chevrolet that was smoking excessively and traveling without brake lights. William T. Crippen was driving the automobile and appellant sat on the front seat.4 At the request of Officer Lonien, Crippen displayed his operator's permit, and appellant produced a registration certificate from the glove compartment.5 The officer attempted to compare the number appearing on the registration certificate with the serial number on the vehicle's door plate.6 He then noticed that the plate was affixed to the car with glue, and on touch it fell off into his hand.7 Appellant, and later Edwards, were arrested.8

At the trial, the Government established a factual pattern upon which convictions of appellant and Edwards were sought. Its proof showed plainly that the two auto theft victims, Sherwood and Oates, had lost their vehicles in consequence of felonious takings.9 Expert testimony demonstrated unequivocally that the car in which appellant and Crippen were arrested was the Chevrolet stolen from Sherwood.10 It had been partially repainted, its power plant had been supplanted by the engine stolen from Oates' Chevrolet,11 and other equipment had been replaced as well.12 The serial number on the door plate, it developed, was that of an automobile purchased by appellant from John Long in early April, 1967 — about a month before his arrest — and registered, at his direction, in Edwards' name; and the seats and heater were from that automobile.13 There was testimony, too, that for some time the Sherwood vehicle was kept on a lot opposite the rear of Edwards' residence; that at a point perhaps a month before the arrests it was without an engine or transmission; that appellant and Edwards "were fixing the car;"14 and that Edwards had lent it to Crippen on several occasions.

At the conclusion of the Government's presentation, the defendants moved for judgments of acquittal.15 On denial of the motions, neither sought to testify or, aside from a stipulation and a map introduced in Edwards' behalf,16 to offer any evidence. At the Government's request, over objection by the defense, the trial judge instructed the jury, inter alia, that it was at liberty to infer guilt of the charges from the unexplained possession of recently stolen property.17 As previously stated, the jury acquitted Edwards and convicted appellant on all counts.

II

With us, larceny is in essence the unlawful taking and carrying away of property of another with intent to appropriate it to a use inconsistent with the latter's rights.18 Unauthorized use of a motor vehicle, though not congruent with larceny of a motor vehicle,19 similarly involves a usurpation of someone else's property.20 Consequently, we have recognized that a single taking of an automobile may offend the statutes on both offenses and authorize separate though concurrent sentences under each.21 But it goes without saying that conviction of either offense, as indeed of any crime, entails evidence having enough probative power to convince the jury beyond a reasonable doubt on every essential element, and also on the identity of the accused as a participant.22

In the case at bar, as we have noted,23 the Government's uncontradicted presentation plainly made out a larceny and an unauthorized use of Sherwood's automobile by someone, and a larceny of the engine from Oates' automobile as well. In its effort to prove that appellant and Edwards were the parties who committed those crimes, the Government relied on the inference derivable from the possession of recently stolen property.24 We have sanctioned resort to the inference for this purpose in both larceny and unauthorized use cases.25 We have also endorsed its use where the possession was of but a portion rather than all of what was stolen.26 As we have related, the trial judge instructed the jury that it might, if it saw fit, draw such an inference against appellant and his codefendant.

Appellant protests the rendition of that instruction initially on the ground that the evidence could not support a factual finding that he had such possession of the stolen items as would give rise to the inference.27 In appellant's view, he had no possession at all, and in any event none that could be characterized as exclusive. In consequence, so he argues, the inference could not properly be utilized in securing his conviction and, the Government being without direct evidence of his involvement in the offenses, his motion for a judgment of acquittal should have been honored.

As appellant emphasizes, our past decisions have frequently used the word "exclusive" to denote the kind of possession of stolen property that is prerequisite to an inference of guilt.28 That word, however, is no more than judicial shorthand for the underlying concept that the accused must bear a distinctive relationship to the property before the inference is allowed. Why this precondition is imposed, and what it necessitates, are insights that readily emerge when the anatomy of the inference is examined closely.

Recently, in our Pendergrast decision,29 we pointed out that "the inference is indulged only where the accused is found in exclusive possession of property recently stolen and the possession is not otherwise explained."30 We pointed out that "the inference is then permitted because its factual prerequisites, if competently established, support a logical deduction that the possession of the stolen property could have been acquired only by the possessor's theft of that property."31 "To so infer," we added, "`is but to accord to the evidence, if unexplained, its natural probative force.'"32 "Thus, upon analysis," we concluded "this inference appears simply as a result which the jury is free to reach on the basis of the circumstantial evidence which authorizes the inference."33

By no sensible measure could an inference that the accused is the party who engineered a larceny-type offense spring from an association with the stolen property that differs little or none from that borne by the general public. On the other hand, the probative force of the association grows stronger as its characteristics involve the accused more particularly. The association suffices to give the inference evidentiary value when it attains such quality that, when coupled with the other evidence, there is a probability of guilt that a prudent mind could accept as not reasonably doubtful. "Exclusive," then, in this context is not a word of art, but rather a term descriptive of a relationship to stolen property which has achieved that degree of quality.

So it is that the exclusivity requirement, it is held, may be met although the stolen property is not subject to the accused's direct physical control,34 or located on premises under his dominion.35 It may be satisfied by something less than that which in other legal contexts traditional concepts of "possession" may demand.36 It may be fulfilled, too, by a relationship to the stolen property that is shared with another so long as that relationship is significantly distinguishable from the connection others bear to the property.37

By our appraisal, the Government's proof on exclusivity in this case met these governing standards. The stolen Sherwood Chevrolet, at one time lacking an engine and transmission, had for a considerable period been stationed behind Edward's place of abode. During this period, the stolen Oates' engine had been installed therein, and seats and a heater as well. The latter items came from an automobile that lately had been bought and paid for by appellant and at his bidding registered in Edward's name. Very significantly, the serial plate had been taken from that vehicle and glued to the Sherwood car, and that car had been partially repainted. By appellant's own admission, he collaborated with Edwards in the renovation of the car.

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