Wednesday, June 13, 2007

Possession, by itself, is not 9/10 of theft

Timothy A. Short won in State v. Roberts, No. 97,117 (Kan. App. May 18, 2007) (unpublished), affirming Judge Wachter's dismissal of felony theft at preliminary hearing. Mr. Roberts was found in possession of a stolen Jeep. But Mr. Roberts was able to explain his possession without contraciction and the COA held that such a situation does not support a finding of probable cause that Mr. Roberts stole the Jeep"
Generally, possession of stolen property establishes a prima facie case sufficient to warrant a theft conviction. State v. Peterson, 198 Kan. 239, 240, 424 P.2d 552 (1967). However, “[i]t is not the mere possession but the unexplained possession of stolen goods that warrants the inference of guilt.” (Emphasis added .) Roberts' possession was not unexplained. He provided a reasonable explanation of how he came to acquire the Jeep. There was no direct evidence that Roberts stole the jeep or knew it was stolen when he acquired it. Nobody saw Roberts with the Jeep until at least 3 months after it was stolen. The longer the interlude between a theft and evidence of the defendant's possession of the stolen goods, the greater the need for additional evidence beyond mere possession. . . .

The only evidence supporting the charge of theft was Roberts' possession of the Jeep 3 months after it was taken. When considering the uncontradicted testimony regarding the circumstances under which Roberts acquired the Jeep and the great deference we give trial courts in considering these matters, the district court did not err in finding that the fact of Roberts' possession of the Jeep, with nothing more, would not cause a person of ordinary prudence to reasonably believe Roberts committed the crime.

Odd case for the state to choose to appeal.

[Update: the state did not file a PR and the mandate issued on June 21, 2007].

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