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33.1 Inference From Possession Of Recently Stolen Property: Miscellaneous Issues

    33.1.1 Possession Of Recently Stolen Property: Intoxication And/Or Mental Impairment As Defense Theory
    33.1.2 Possession Of Recently Stolen Property: Agreement To Purchase Not Sufficient
    33.1.3 Possession Of Recently Stolen Property: Federal Circuit Model Instruction And Notes

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RATIONALE: Possession requires a knowledge element which may be negated by intoxication or mental impairment. Therefore, when appropriate, a defense theory instruction on this point may be appropriate.

POINTS AND AUTHORITIES: "Conscious possession" is a predicate fact which must be proven to trigger jury consideration of any inferences from the defendant's possession of recently stolen property. (See FORECITE National™ 33.4.3 [Failure To Prove That The Property Was In "Conscious Possession" Of Defendant].) "Conscious possession" requires both knowledge of the nature of the item possessed and knowledge that the item is possessed. (See FORECITE National™ 56.3.4.1 [Unwitting Possession As Defense Theory]; see also People v. Brooks (CA 1965) 234 CA2d 662, 670 [44 CR 661]; People v. Collin (CA 1965) 232 CA2d 681, 684 [43 CR 57].)

    Accordingly, factors which could impair the defendant's perception, such as intoxication or mental impairment, may be the basis for a defense theory negating "conscious possession." (See People v. Bryson (CA 1967) 257 CA2d 201, 210 [64 CR 706] [no showing of "conscious possession" of stolen property due to intoxication]; Rollins v. Superior Court (CA 1963) 223 CA2d 219, 222 [35 CR 734] [no conscious possession where defendant did not know he possessed the property]; see also FORECITE National™ 56.1.4 [Possession: Intoxication As Defense To Knowledge Element].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2 ; 4.1].

NOTES: For examples of specific instructions regarding the impact of impaired mental or physical faculties, see FORECITE National™ 256.7.1 [Mental Impairment: Miscellaneous Issues]; see also FORECITE National™ 256.6 [Intoxication, Voluntary]; and FORECITE National™ 256.7.3.16 [Physical Trauma To Negate Mental Element Of The Charged Offense].

    This instruction should be given with other instructions defining actual and constructive possession. (See FORECITE National™ 56.1 [Miscellaneous Issues And Defenses].)

See generally, FORECITE National™ 305.9.3 [Inference From Possession Of Property].

See also generally, FORECITE National™ 305.16.7 [Possession Of Stolen Property].

See generally, FORECITE National™ 33.1.3 [Possession Of Recently Stolen Property].

    "Conscious possession" within the meaning of this instruction requires the following:

    1. The defendant had either actual or constructive possession of stolen property;

    2. The defendant had actual knowledge of [his] [her] possession of the property; and

    3. The defendant had actual knowledge that the property was stolen.

    In deciding whether these elements were satisfied, you must* consider any physical or mental impairments of the defendant, including intoxication; impairment of mental facilities through mental disease, defect or disorder; impairment of physical faculties and/or physical trauma.

* See FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence] and FORECITE National™ 256.6.1.6 [Voluntary Intoxication: Jury "Must" Consider].

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    33.1.2    Possession Of Recently Stolen Property: Agreement To Purchase Not Sufficient

PRACTICE NOTE: An agreement or contract to purchase property is not alone sufficient to establish constructive possession. (See FORECITE National™ 56.2.11 [Possession: Agreement Or Contract To Purchase Not Sufficient].)

See generally, FORECITE National™ 305.9.3 [Inference From Possession Of Property].

See also generally, FORECITE National™ 305.16.7 [Possession Of Stolen Property].

See generally, FORECITE National™ 33.1.3 [Possession Of Recently Stolen Property: Federal Circuit Model Instructions And Notes].

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    33.1.3    Possession Of Recently Stolen Property: Federal Circuit Model Instructions And Notes

RELATED FEDERAL MODEL INSTRUCTIONS:

See 6th Circuit Pattern Jury Instructions - Criminal 7.16.

See also 7th Circuit Federal Jury Instructions - Criminal 3.14.