United States v. Turner, 84-69.

• Decision Date: 26 January 1970
• Docket Number: No. 84-69.,84-69.
• Citation: 421 F.2d 252
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Floyd Edward TURNER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

421 F.2d 252 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Floyd Edward TURNER, Jr., Defendant-Appellant.

No. 84-69.

United States Court of Appeals Tenth Circuit.

January 26, 1970.

John S. Castellano, Denver, Colo., for defendant-appellant.

Milton C. Branch, Asst. U. S. Atty. (James L. Treece, U. S. Atty., and David L. Osborn, Asst. U. S. Atty., were with him on the brief) for plaintiff-appellee.

Before TUTTLE,^* Senior Circuit Judge, and HILL and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Appellant Turner seeks to reverse a conviction under 18 U.S.C. § 661 for theft of an automobile in 1968 from a parking lot at Fitzsimons Army Hospital in Denver, Colorado.¹ For reversal Turner urges that the Government proof was insufficient on several grounds and claims errors in trial procedure and the instructions. Turner offered no evidence but he challenged the sufficiency of the Government proof by a motion for judgment of acquittal, and a motion to set aside the verdict and enter judgment of acquittal or in the alternative for a new trial.

Where such a challenge is made to the sufficiency of the proof to support a conviction, we must view the evidence and all reasonable inferences therefrom in the light most favorable to the prosecution. Pauldino v. United States, 379 F.2d 170 (10th Cir.). There must, of course, be substantial proof of each element of the offense on which the jury could find the defendant guilty beyond a reasonable doubt. However, it is not necessary, as Turner argues, that the evidence preclude every hypothesis except guilt even though the conviction may rest primarily on circumstantial evidence. Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150; Thomas v. United States, 409 F.2d 730 (10th Cir.).

With these guidelines in mind we turn to the principal facts which the Government proof tended to show. It was stipulated that on April 12, 1968, the car described in the indictment, a 1968 blue Rambler belonging to one John Chester, was parked on a lot next to Fitzsimons Army Hospital; that this car bore the same identification number as that alleged in the indictment; that Chester gave no one permission to drive the car from its location; and that, without permission by Chester, it was taken from the parking lot on April 12.

Acquaintances of Turner — Askew and Maxey — testified that they saw Turner driving a 1968 blue Rambler several times in April and May of that year. He told them it belonged to his girl. Askew was allowed to drive the car twice, and he went riding with Turner almost every Sunday until Turner's arrest on another matter. Maxey also drove the car more than once and rode with Turner in it as well. On May 5, 1968, an Aurora, Colorado, patrolman arrested Turner at a discount store on an unrelated matter. As requested by Turner, Askew drove the car to his own home from the store. The vehicle was parked at Askew's home and his mother took the keys and called the authorities. They had the vehicle towed away to the Denver auto pound sometime around May 20.

On this and other proof detailed below, Turner was found guilty by a jury. He was sentenced by the court as a youth offender under 18 U.S.C. § 5010(b), from which conviction and sentence he appeals. We turn now to his contentions on the appeal.

We consider first the question whether the car Turner was driving in April and May, 1968, was sufficiently identified as the stolen car, a point seriously challenged and one we find to be dispositive. This conviction necessarily rests on identification of the car driven by Turner as that stolen from the hospital. For the Government sought to prove that Turner stole the car by relying on the permissible inference of theft based on unexplained possession of recently stolen property. See Wilson v. United States, 162 U.S. 613, 617, 16 S.Ct. 895, 40 L.Ed. 1090; Martinez v. State of Utah, 412 F.2d 853 (10th Cir.); and Thurmond v. United States, 377 F.2d 448 (5th Cir.).

The owner of the car did not testify. There was proof by the officer who came to the Askew home about the car that he saw a registration which he believed was in the name of a Mr. and Mrs. Chester. He said this was a Colorado registration but that the car had an out-of-state plate, which he believed was from Georgia. He described the car as a 1968 light blue 4-door Rambler. He said he checked the car to see if it was reported stolen, such as by examination of the identification number, but was unable to find a report it was stolen. He did not state the license number or the vehicle identification number.

However, because of the Colorado registration and out-of-state tag, he said he had the car at the Askew home at 2565 Glencoe towed away. As nearly as he could recall "* * * it was around the 20th of May." An F.B.I. special agent testified that later he went to the Denver auto pound on June 3d and examined the records for a 1968 Rambler towed in on May 20th "* * * from the 2500 block of Glencoe." He thus determined which car to check. He made a pencil lift of the identification number of a 1968 Rambler thus located which corresponded with that of the stolen vehicle.

This was the extent of proof attempting to establish that the car in Turner's possession was the stolen vehicle. There was no evidence by the owner or other witnesses identifying the car as the stolen vehicle by observation of it and its license tags as in Welch v. United States, 360 F.2d 164 (10th Cir.). Moreover, the proof identifying the vehicle in Turner's possession merely by color, make and model was not sufficient. See Tyler v. United States, 323 F.2d 711 (10th Cir.); Watkins v. United States, 409 F.2d 1382 (5th Cir.); and Thompson v. United States, 334 F.2d 207 (5th Cir.). These and the remaining circumstances, seeking to connect the stolen car ultimately identified at the auto pound as the car earlier in Turner's possession, raised a...