FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33
Go to Volume 4 Table of Contents - Go to Chapter 33 Table of Contents

33.5 Possession Of Recently Stolen Property: Limitations

    33.5.1 Possession Of Stolen Property Does Not Prove Robbery As Opposed To Theft, Or The Degree Of The Larceny
    33.5.2 Unexplained Possession Of Stolen Property Not Alone Sufficient To Sustain Finding Of Theft Or Burglary
    33.5.3 False Explanation Of Possession Of Stolen Property: Whether Sufficient To Sustain Finding Of Theft
    33.5.4 Recent Possession Of Stolen Goods: Inapplicable To Receiving Or Theft By Receiving
    33.5.5 Defense Theory That Possession Of Recently Stolen Property Is Not Relevant As To Related Nonlarceny Offenses
    33.5.6 Possession Of Recently Stolen Property: Defense Theory That The Passage Of Time Makes Any Inference Less Probative
    33.5.7 Reverse Inference: Lack Of Possession Of Stolen Property Permits Inference Negating Guilt

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

RATIONALE: When there is a jury issue as to whether the crime was theft or robbery, any instruction on recent possession of stolen property should explain that such possession has no relevance as to the issue of which crime was committed.

POINTS AND AUTHORITIES: The standard pattern instruction on possession of recently stolen property may be misleading when the defendant is charged with both theft and robbery, or where theft may be considered a lesser included offense of robbery. For example, if the instruction refers only to the robbery, it could erroneously imply that possession of the stolen property raised an inference that the defendant was guilty of robbery rather than theft.  "[O]nly half of the problem...has been solved when guilty possession fixes the identity of the offender. There remains the question of the nature of his offense."  (People v. Galbo (NY 1916) 112 NE 1041, 1044.) 

    Accordingly, upon request, the standard pattern instruction should be modified or supplemented to assure that the jury is not led to believe that possession of the stolen property is more indicative of a robbery than a theft.

    See also FORECITE National™ 270.2.17 [Burden Of Proof Is Not Satisfied By Equally Conflicting Inferences That Are In A State Of Equipoise].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 4.1].

USE NOTE: For the same reasons, the degree of a robbery cannot logically be inferred from recent possession of the stolen property.

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].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

RATIONALE: The failure of the defense to present evidence does not create an affirmative evidence of guilt. Hence, the defendant's guilt of larceny or burglary should not be predicated solely on his or her failure to furnish an explanation for possession of recently stolen property.

POINTS AND AUTHORITIES: "Mere possession of recently stolen property by [the defendant], even if unexplained or falsely denied, is not sufficient evidence to support a conviction of robbery, but is merely one circumstance which may be considered." (Lansdown v. Commonwealth (VA 1983) 308 SE2d 106, 113; see also In re D.M.G. (CA 1981) 120 CA3d 218, 227 [174 CR 557]; People v. Harris (CA 1958) 163 CA2d 470, 473-74 [329 P2d 557]; People v. Citrino (CA 1956) 46 C2d 284, 288 [294 P2d 32]; People v. Clark (CA 1953) 122 CA2d 342, 346 [265 P2d 43] [unexplained possession alone is insufficient to support a conviction for burglary]; Shorts v. State (GA 1976) 223 SE2d 504 [State's proof of defendant's possession of recently stolen property, which he attempted to pawn, was insufficient to show guilty knowledge or to authorize verdict of guilty of theft by receiving stolen property]; McClain v. State (MS 1993) 625 So2d 774, 778; Whatley v. State (MS 1986) 490 So2d 1220, 1224; Hardesty (TX 1983) 656 SW2d 73, 77.)

    See also FORECITE National™ 33.2.1 [Recent Possession Of Stolen Property: Defendant Has No Burden Or Obligation To Furnish Explanation].

    See also FORECITE National™ 33.2.2 [Possession Of Recently Stolen Property: Defendant’s Testimony Not Necessary To Explain].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 2.4; 4.1].

NOTE: This principle applies most clearly when the possession is unexplained. When an inherently unbelievable explanation is given this may provide the added evidence necessary to convict. See FORECITE National™ 33.5.3 [False Explanation Of Possession Of Stolen Property: Whether Sufficient To Sustain Finding Of Theft]; see also FORECITE National™ 34.3.15 [Flight Instruction Improper Where Defendant’s Explanation Is Uncontradicted And Not Incredulous Or Unbelievable].

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].

    Unexplained possession of recently stolen property is not alone sufficient to convict the defendant of [theft] [burglary] [_____.]

    You may not convict the defendant of [theft] [burglary] [_____] unless there is additional evidence above and beyond the defendant's possession of the stolen property which, when considered with all the other evidence, convinces you beyond a reasonable doubt that the defendant is guilty of [theft] [burglary] [_____].

    Unexplained possession of recently-stolen goods, standing alone, will neither support an inference of guilt nor authorize a conviction of theft by receiving stolen property.

[See Shorts v. State (GA 1976) 223 SE2d 504, 505; see also GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES 2nd Ed. [Recent Possession of Stolen Goods (Burglary, Theft, Robbery)] para. 2, p. 101 (F)(2) (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1991).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 4 - CHAPTER 33

    33.5.3    False Explanation Of Possession Of Stolen Property: Whether Sufficient To Sustain Finding Of Theft

PRACTICE NOTE: See Wright v. West (1992) 505 US 277, 282 [112 SCt 2482; 120 LEd2d 225] [falsely explained possession of recently stolen property is sufficient to sustain a finding that the possessor took the property where explanation was inherently incredible]; see also People v. Curtis (IL 1969) 254 NE2d 87, 89; compare Walker v. State (OK 1937) 70 P2d 1099, 1101 [the possession of recently stolen property is a circumstance to be considered in connection with other competent evidence in trial of larceny prosecution, but such possession alone is insufficient to warrant conviction when reasonable explanation of possession of property is made and circumstances tend to support explanation].

    However, there remain issues as to whether the record must contain other objective evidence and/or whether the defendant's explanation must be inherently implausible. (See U.S. v. Martinez (9th Cir. 1975) 514 F2d 334, 341; U.S. v. Stauffer (9th Cir. 1990) 922 F2d 508, 515.)

BRIEFING AVAILABLE: Click here. [Brief Bank # B-753.]

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].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

RATIONALE: The inference which flows from possession of recently stolen property is that the possessor is the one who originally stole the property. On the other hand, the guilty knowledge necessary to prove the crimes related to receiving stolen property may not be inferred simply from the defendant's possession of that property. Hence, when the charges include such a receiving stolen property offense, it may be necessary to specifically limit any instruction on possession of stolen property to preclude its use to infer guilty knowledge.

POINTS AND AUTHORITIES: The possession of recently stolen property or a part thereof may justify the conclusion that the possessor thereof committed the offense of theft, but does not justify the conclusion that he fraudulently received the stolen property knowing that it was stolen and thereafter concealed it. (See e.g., Marquez v. State (TX 1934) 70 SW2d 426, 427; see also Wilson v. State (TX 1991) 807 SW2d 6, 7.) The unexplained possession of the motor, which was a part of the recently stolen property, alone might justify the conclusion that appellant stole the car, but would not justify the conclusion that he fraudulently received and concealed it. (Ibid.; see also Jackson v. State (TX 1971) 464 SW2d 153, 155; State v. Inman (MO 1979) 578 SW2d 336, 338.)

    See also FORECITE National™ 33.5.5 [Defense Theory That Possession Of Recently Stolen Property Is Not Relevant As To Related Non Larceny Offenses].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1; 7.1].

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].

    Unexplained possession of recently-stolen goods, standing alone, will not support an inference of guilt nor authorize a conviction of theft by receiving stolen property.

[See Shorts v. State (GA 1976) 223 SE2d 504; see also GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES 2nd Ed. [Recent Possession of Stolen Goods (Burglary, Theft, Robbery)] p. 101 (F)(2) (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 1991).]

    You may not infer guilty knowledge simply from the defendant's possession of stolen property.

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

    33.5.5    Defense Theory That Possession Of Recently Stolen Property Is Not Relevant As To Related Nonlarceny Offenses

PRACTICE NOTE: In People v. Nguyen (CA 1993) 21 CA4th 518, 538-39 [26 CR2d 323], the defendants were charged with both robbery and accessory to a sexual assault committed by one of the codefendant's during the robbery. The court held the defendants' mere possession of the property which they stole in the robbery was not sufficient to make them accessories in the unforeseen sexual assault.

    See also FORECITE National™ 33.5.4 [Recent Possession Of Stolen Goods: Inapplicable To Receiving Or Theft By Receiving].

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].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 4 - CHAPTER 33

    33.5.6    Possession Of Recently Stolen Property: Defense Theory That The Passage Of Time Makes Any Inference Less Probative                  

RATIONALE: The longer the time since the theft, the more doubtful is the inference of guilt from possession of the property because it is more likely that the actual thief disposed of the property and the defendant acquired the property innocently from another person. Accordingly, when the defense relies upon the passage of time to negate the inference, a special instruction may be appropriate.

POINTS AND AUTHORITIES: "[T]he inference of guilty knowledge that may flow from possession of [recently stolen property] grows weaker as the time of possession recedes from the time of theft ... present[ing] a matter for the jury under appropriate instructions.' [Citations.]" (U.S. v. Johnson (6th Cir. 1984) 741 F2d 854, 857; see also U.S. v. Wolfenbarger (6th Cir.1970) 426 F2d 992, 995; Pendergrast v. U.S. (DC Cir.1969) 416 F2d 776, 786; Barnes v. U.S. (1973) 412 US 837, 841 [93 SCt 2357; 37 LEd 2d 380]; State v. Rhymes (AZ 1971) 480 P2d 662, 666; Wells v. People (CO 1979) 592 P2d 1321, 1325; Fleming v. U.S. (DC 1973) 310 A2d 214, 218 [the jury was correctly instructed that the longer the time interval involved, the more doubtful the inference]; State v. DeWitt (SC 1970) 176 SE2d 143, 145; CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.44, comment [Receiving Stolen Property And Attempted Receipt Of Stolen Property] p. 390 (Bar Association of the District of Columbia, 4th ed. 1993) ["The longer the interval between the theft and discovery of possession of recently stolen property, the weaker the inference to be drawn. [Citation.]"].)

    See also FORECITE National™ 33.4.5 [Possession Of Recently Stolen Property: "Recently" Is A Relative Term].

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].

    The longer the period of time between the theft and [the defendant’s] possession, the less weight you should give this evidence.

[6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 7.16 [Possession Of Recently Stolen Property] § 2 (1991).]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 4 - CHAPTER 33

RATIONALE: In jurisdictions where the prosecution may obtain an instruction on possession of recently stolen property, the defense should be permitted a comparable instruction on lack of possession, when appropriate.

POINTS AND AUTHORITIES: Where a crime is of a type in which physical evidence is normally possessed by those who commit it, a search which fails to uncover such evidence may create an inference that the person searched is not guilty of the offense. (See U.S. v. Van Fossen (4th Cir. 1972) 460 F2d 38, 41.)

    As a matter of fairness and due process the defendant should have the right to instruction on this point as a defense theory. This is so because the prosecution is normally allowed an instruction on the corresponding theory that unexplained possession of recently stolen property raises an inference that the defendant stole the property. (See FORECITE National™ 33.4 [Possession Of Recently Stolen Property: Predicate Facts].) To allow the prosecution such an instruction and deny the defense instruction proposed herein would violate due process which requires balance between the prosecution and defense. (See FORECITE National™ 6.1.2 [If The Prosecution Gets Inference Instructions The Defense Should Also].)

    See also FORECITE National™ 270.4.6 [Reasonable Doubt May Be Based On Lack Of Evidence Or Conflict In The Evidence].

    See FORECITE National™ 88.4.3.10 [Drug Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence As Defense Theory].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.6; 4.1; 6.5].

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].

    Where the crime is of a type in which physical evidence is normally possessed by those who commit it, the fact that the defendant did not possess such evidence may be considered in deciding whether [he] [she] is guilty.

    The identity of the defendant is an essential fact which must be proved by the prosecution beyond a reasonable doubt. Where the crime is the type in which physical evidence is normally possessed by those who commit it, you may, but are not required to conclude that the prosecution has failed to meet its burden based on the defendant's failure to possess such evidence.