Phillips v. State

¶1DISSENT

¶2I dissent to reversing the judgment of conviction because of the giving of instruction lF(s)3.

¶3Comparing the offending instruction [lF(s)3] with the instruction approved by the Supreme Court in Gann v. State (1971), 256 Ind. 429, 269 N.E.2d 381, which is the most recent Supreme Court case on this subject, I can find no significant difference:

¶41F(s)3:

The exclusive possession of stolen property soon after a larceny or burglary has been committed, if not explained to the satisfaction of the jury, may raise an inference that the person in possession of such stolen property is guilty of the larceny or burglary charged. The inference of guilt does not arise from the mere possession of the property stolen, but arises from the fact of its possession *15shortly after it has been stolen, coupled with the absence of a satisfactory explanation, or of anything tending to show that such possession is or may be consistent with innocence. In this case, evidence has been presented by the State tending to prove that certain goods, allegedly taken by a larceny or burglary from the residence of Mildred Heald, were in the possession of the defendants shortly after the alleged larceny or burglary. The jury, in its deliberations, should consider all the evidence offered on this issue in the light of all the other evidence in the case, giving such credence to witnesses and such weight to the evidence as the jury believes is warranted, (emphasis supplied)

¶5The Ganninstruction:

INSTRUCTION NO. 22

The unexplained, exclusive possession of a defendant of recently stolen property is a circumstance which may be considered, along with the other facts and circumstances of the case, in determining the guilt or innocence of the accused. However, the mere possession of stolen goods, standing alone, is insufficient to support a conviction, and the defendant cannot be convicted on the basis of evidence of mere possession of stolen goods alone.

If you should find from the evidence, beyond a reasonable doubt, that a burglary was in fact committed on the premises involved in the case, and that within a short period of time thereafter the defendant himself or with others was found in the unexplained, exclusive possession of property identified by the evidence as that stolen from the burglarized premises, you may consider such circumstance in arriving at your verdict in this case. However, no presumption of guilt of burglary is made or arises against a defendant merely by reason of his exclusive possession of goods which have been unlawfully and burglariously taken within a short period of time beforehand, if such be the case. Proof of the commission of the offense must be made beyond a reasonable doubt by the State, and the defendant has no burden to account for or explain for his possession of the goods, but the burden of proving his guilt beyond a reasonable doubt rests entirely upon the State, and you would not be warranted in finding the defendant guilty unless all of the elements of the offense charged have been proved by the evidence, of whatever class it may be, beyond a reasonable doubt, (emphasis supplied)

¶6Only a nuance separates the Ganninstruction from lF(s)3. Both explain the inference arising from possession of stolen property. Both recite *16the requirement of burden of proof... lF(s)3 being even more specific in its explanation that the jury should consider all the evidence. The Ganninstruction’s possible commentary on the failure of the defendant to testify1 consists of a double reference to “unexplained” possession of stolen property. In lF(s)3 the single reference is to, “if not explained to the satisfaction of the jury”, a more explicit phrase, which is followed by verbiage requiring the jury to consider all the evidence.

¶7To reverse on a finespun variance in the language between these two instructions is to circumvent the explicit holding of Gann v. State and to substitute therefor the rationale of Abel v. State (1975), 165 Ind.App. 664, 333 N.E.2d 848, and Underwood v. State (1977), 174 Ind.App. 199, 367 N.E.2d 4, on which the majority rely. Transfer was not sought in either case.

¶8Thus, I consider Gann v. State as the ruling precedent governing this case and would affirm the conviction.

¶9NOTE — Reported at 376 N.E.2d 1143.