dissent">James R. Cooper, Judge,

dissenting. I respectfully dissent from the majority opinion. In my view, the majority opinion in this case opens the door, and even encourages, overcharging by prosecuting attorneys. Under the facts of this case, and the decision of the majority, virtually any individual who has committed the crime of theft by receiving could also be charged and convicted of burglary, at least if the burglary took place within two or three days prior to his arrest for possession of the recently stolen property. The majority opinion concedes that the State must prove every element of the offense of burglary and then proceeds to allow the State to fail to do exactly that. There is not one scintilla of evidence in this record, and none is mentioned by the majority, that allows even a reasonable inference that the appellant ever set foot in Wonder Junior High School. The appellant was found in possession of items which had recently been stolen from the Junior High School, and he failed to satisfactorily explain his possession of those items.

The fact that the appellant lied to the officers about the source of the band instruments, and the manner by which he got possession of them, is one of the factors to be considered in determining guilt or innocence of a charge of theft by receiving under Ark. Stat. Ann. § 41-2206 (Repl. 1977).

The majority opinion cites various rules regarding the use of circumstantial evidence and uses these rules to support its conclusion that there is sufficient evidence to find the appellant guilty. What the majority opinion overlooks is that there is no evidence, circumstantial or otherwise, except for the possession of the recently stolen property, which in any way connects the appellant to the crime of burglary. In order to prove burglary under Ark. Stat. Ann. § 41-2002 (Repl. 1977), the State must prove that the appellant entered or remained unlawfully in an oc-cupiable structure with the purpose of committing an offense punishable by imprisonment. It is that illegal entry that is not supported by the evidence in the case at bar.

I simply cannot agree with the majority opinion that there was substantial evidence to support the jury’s verdict. The majority points out that “[e]vidence of flight after the commission of a crime is generally admissible even though it does not occur immediately after the crime.” That general proposition is true, but the appellant’s flight from Sergeant Moss is as consistent with avoiding arrest on the charge of theft by receiving as it is burglary. I fail to see how his fleeing the pawn shop supports a conclusion that sometime during a two or three day period prior to that time he entered the school with the intent to commit a theft.

The majority concedes that there was no direct evidence that the appellant ever entered the burglarized building, but somehow bootstraps itself into supporting the appellant’s conviction by mentioning that “the building was unlawfully entered and the articles unlawfully taken from it”. Everyone concedes that the building was entered and the articles taken, but it was for the State to prove that the appellant was the individual who entered the building. The State failed to do so.

I respectfully dissent.

Cloninger, J., and Glaze, J., join in this dissent.

Citation profile

How this case has been treated — in progress