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concluding that the "mere fact that property is located within premises under one's control does not, of itself, constitute constructive possession * * * [i]t must also be shown that the person was conscious of the presence of the object"
Summary of this case from State v. FryeOpinion
No. 81-1399
Decided May 19, 1982.
Criminal law — Receiving stolen property — Constructive possession — Exists, when.
Possession of stolen property for purposes of the receiving stolen property statute, R.C. 2913.51, may be constructive as well as actual. Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession. ( State v. Wolery, 46 Ohio St.2d 316, explained and followed.)
APPEAL from the Court of Appeals for Hamilton County.
Joseph and Lorette Hankerson, defendants-appellants, were indicted and charged with two counts of receiving stolen property in violation of R.C. 2913.51. The first count alleged that the Hankerson received, retained or disposed of two Speaker Lab stereo speakers with knowledge or reasonable cause to believe the speakers had been obtained through commission of a theft offense. The second count accused the Hankersons of similar conduct with respect to a JVC CB4 stereo turntable.
Following entry of a not guilty plea, the defendants waived their right to trial by jury and elected to be tried by the court.
Testimony elicited by the prosecution indicated that the Cincinnati police searched the Hankerson home at 5858 Valley View, in the Kennedy Heights area of Cincinnati, on January 13, 1980. The search was carried out under the authority of a search warrant issued after the police received a tip that two stolen stereo speakers were in the Hankerson home. The officers found and confiscated that equipment, the JVC turntable, as well as other property not identified in the warrant including 12 or 13 televisions and 5 turntables. Only the two Speaker Lab speakers and JVC turntable were subsequently identified as being stolen. The speakers were described as being 30 inches tall, 12-14 inches wide and weighing approximately 30 to 40 pounds each. Officer Charles Beebe, who participated in the execution of the search warrant, testified that the speakers and turntable were found in a second floor bedroom and were in plain view. He also testified that in May 1979, the defendants' son Donald had been arrested for aggravated burglary, and that he had discussed that situation with the defendants at that time.
Ernestine Enystrand, an employee of the Kennedy Heights Community Council, testified that she talked to Joseph Hankerson in her office in the summer of 1979, and told him that Donald was rumored in the neighborhood to be a thief. She also testified that in a telephone conversation with Mrs. Hankerson after the January 13 search and seizure, Mrs. Hankerson indicated that Donald had told her that he found the confiscated property "in the woods down near the railroad tracks." On cross-examination Enystrand testified that during the conversation, Mrs. Hankerson did not indicate whether Donald told her before or after the January 13 search where he had obtained the stolen stereo equipment.
The owner of the stolen stereo speakers testified that they were removed from his home on December 29, 1979. The owner of the JVC turntable testified it was stolen on November 3, 1979.
The defense called Lorette Hankerson to testify in her own behalf. She testified that she was a full-time student at Northern Kentucky University and had been on medical leave of absence from the Ford Motor Co. since September 1979. She testified that her husband was in the moving and hauling business, and that, as a result, their home was cluttered with objects, including furniture and broken electronic equipment which her husband sometimes sent out for repairs. She testified that she and her husband slept in a bedroom on the first floor of the house with the door closed and that their son Donald was the sole occupant of the second floor. Mrs. Hankerson expressly denied that she knew that the subject speakers and turntable were stolen.
The second floor bedroom appears to be a "dormer" style room, separated from both the common areas of the house and the other bedrooms.
Mrs. Hankerson testified that after the search she asked Donald where he had obtained the stolen equipment and that he told her he found the speakers on Congrove Avenue and the turntable in the woods of Kennedy Park. He explained their presence in his room to her by stating that he brought them into the house on a dolly one morning around 3-4 a.m. Mrs. Hankerson claimed that she had not gone into Donald's room to check his possessions on the second floor, nor did she enter his room to clean it, as her doctor had advised her not to do domestic work for health reasons. She testified that the children, including Donald, were responsible for cleaning their own rooms.
Joseph Hankerson testified that in connection with his moving and hauling junk business he kept televisions, speakers, stoves, and furniture in his home, and that in November and December of 1979 and January of 1980 he had 30 to 35 televisions, stereos or turntables in his home. He said he had never owned a speaker 30 inches high, had never heard one played, and that although he had bought a stereo for his son and knew his son had a stereo, he had never heard loud music being played in his son's room. He further testified that he had not seen the stolen Speaker Lab speakers and JVC turntable in his son's room. Joseph Hankerson admitted that his son could not afford to buy stereo equipment such as the 30-inch speakers and the JVC turntable.
Donald Hankerson testified that the Speaker Lab speakers and JVC turntable were not connected and that he never played them. He testified that his parents did not know that he had the stolen stereo equipment in his room, and that it had been in his bedroom for about two days before being seized by the police. He further testified that he found the equipment in a woods in Woolper Center Park near some railroad tracks, and that he brought them in the house through the back door and up to his bedroom while his parents were sleeping. He said he put the equipment in an attic off his room behind a door, and that they were not out in the open. Donald also admitted that in his room were an RCA stereo, a pellet gun, a CB radio, a nine-inch Sony television, a Dynaco stereo preamplifier, and an Antrex three-way speaker, but stated that of those items several had been owned by the family for a long period of time and others were found by him. At the time of the trial Donald was confined in an Ohio Youth Commission facility as a result of being adjudicated delinquent for an unrelated breaking and entering offense.
Officer Beebe was recalled by the prosecution. He testified that upon searching Donald's bedroom the officers found stereo equipment including the stolen speakers and turntable wired together, and that one stereo receiver was "on," but that he did not hear the speakers play. He testified that while the officers were surveying Donald's room and removing objects from it, Mrs. Hankerson came up the stairs and said "[`w]e bought this stuff for our son and you can't prove we didn't.'"
The prosecution called Michael J. Harman, an attorney who resided in the Kennedy Heights area. He testified that on December 27, 1979, he visited the Hankerson home to inform the parents that people in the community believed Donald was involved in neighborhood burglaries. He testified that Mrs. Hankerson assured him that she had no reason to believe her son was involved in burglaries, that there was no property in her house to lead her to believe her son had been involved in such activity and that she would check her home for suspicious items and report them if found. Harman also stated that during the conversation he was accused of having a racist motivation for believing Donald to be a thief.
The court found defendants each guilty of two counts of receiving stolen property, and sentenced each of them to serve two to five years on each count, the counts to run consecutively.
The Court of Appeals, in a split decision, affirmed the convictions, but held that the two counts of the indictment constituted offenses of similar import. The cause was remanded to the trial court for resentencing on one count only of receiving stolen property.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Christian J. Schaefer and Mr. Leo Hildebrandt, for appellee.
Mr. H. Fred Hoefle, for appellants.
In State v. Wolery (1976), 46 Ohio St.2d 316, this court acknowledged the prevailing rule that actual physical possession of stolen property is not a requisite of the offense of receiving stolen property, but that a conviction may be based on the accused's constructive possession of the property. Constructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession. State v. Wolery, supra.
It is undisputed that Lorette and Joseph Hankerson owned the premises at 5858 Valley View, and had dominion and control of the home, including the second floor room of their son Donald over whom they exercised parental custody, control and responsibility. However, the mere fact that property is located within premises under one's control does not, of itself, constitute constructive possession. It must also be shown that the person was conscious of the presence of the object. Without this element one could be found to be in illegal possession of stolen property surreptitiously placed in or upon his property by another. State v. Motyka (1973), 11 R.I. 38, 298 A.2d 793; Amaya v. United States (C.A. 10, 1967), 373 F.2d 197; Commonwealth v. Davis (1971), 444 Pa. 11, 280 A.2d 119. See State v. Daugherty (1970), 12 Ariz. App. 366, 470 P.2d 686.
Indeed, the Court of Appeals recognized, sub silentio, that constructive possession requires a showing of conscious possession, by including in its analysis a discussion of whether the appellants had knowledge that the subject property was on the premises. The court concluded that in light of the police testimony that the speakers and turntable were not hidden, were in plain view in Donald's room, were large and bulky, and were connected and operable, the court as trier of fact could infer from the appellants' ownership, dominion and control of the premises, and the facts of normal family home occupancy, that the appellants had knowledge that the subject property was in the second floor room. The appellants contend before this court that, to the contrary, this evidence is insufficient to support a finding beyond a reasonable doubt that they had actual knowledge their son had secreted stolen property in the home.
A fact may be proved to a moral certainty by circumstantial evidence as well as direct evidence. State v. Nevius (1947), 147 Ohio St. 263; State v. Graven (1978), 54 Ohio St.2d 114, 118. As noted in the Graven case, certain elements of certain crimes can only be proved by circumstantial evidence, absent an admission by the accused. One such element is that of knowledge of the presence of stolen property where the crime of receiving stolen property is asserted on the basis of the accused's constructive possession. Circumstantial evidence, however, must do more than raise a strong presumption of guilt in order to support a conviction. In order to prove an essential element of a crime the circumstantial evidence must be irreconcilable with any reasonable theory of the accused's innocence. State v. Kulig (1974), 37 Ohio St.2d 157; State v. Graven, supra, at page 118; State v. Goodin (1978), 56 Ohio St.2d 438, paragraph one of the syllabus. Whether a theory of innocence is reasonable must be determined in view of the weight and credibility that the fact finder gives the evidence, and an appellate court can reverse a conviction based in part on circumstantial evidence only where the evidence is insufficient as a matter of law to enable the fact finder to exclude a reasonable hypothesis of innocence. State v. Sheppard (1956), 165 Ohio St. 293; State v. Graven, supra, at page 119.
In light of these guidelines let us assume, arguendo, that the court as fact finder rejected the testimony of all the defense witnesses believing it not to be credible, but accepted completely the testimony of the prosecution witnesses. In such a case the fact finder would have before it evidence that stolen speakers and a turntable were overtly displayed in an upstairs bedroom occupied by the appellants' minor son who was also a thief. The appellants' home, including the son's bedroom, contained more than the usual amount of electronic equipment including numerous stereos, televisions and radios. Three of those articles were identified as stolen. Those three articles included two large stereo speakers approximately 30 inches high and weighing approximately 30-40 pounds. The defendants had been informed in the summer of 1979, and again on December 27, 1979, that various neighbors believed their son to be a neighborhood thief. During the December 27 conversation Mrs. Hankerson stated that she would check Donald's room for suspicious property. Additionally, Mrs. Hankerson stated during the course of the search of her home by police "[w]e bought this stuff * * * and you can't prove we didn't."
The determinative issue is whether this evidence is sufficient to support a finding beyond a reasonable doubt that the appellants had knowledge that the two stolen stereo speakers and the stolen property were in their home, and that they thus had constructive possession of it. We hold that it is.
Joseph Hankerson admitted that his son could not afford stereo speakers the size of the stolen speakers found in Donald's room. This fact, in combination with Donald's arrest record and his parents' knowledge that Donald was rumored in the neighborhood to be a thief, is more than sufficient to enable the trier of fact to conclude that appellants had knowledge of and reason to believe that the stereo equipment found in Donald's room was stolen.
Although a closer question, we also believe that the evidence was sufficient to support, beyond a reasonable doubt, the conclusion that appellants knew that Donald had brought stolen property into the family home. Along with the circumstances noted by the Court of Appeals, the record reflects the following testimony of Officer Beebe:
"Q. Now, did you ask Mrs. Hankerson about any of these items?
"A. When I first walked into the room, Mr. and Mrs. Hankerson was downstairs. When I first walked into the room, I observed the speakers and all.
"Q. You're talking about the bedroom?
"A. That's correct, and all the stereo equipment. I looked at the speakers. I looked at all the other stuff. I said to one of the other policemen, `Should we take all the other stuff, too?' Mrs. Hankerson come up the stairs and said, `We bought this stuff for our son and you can't prove we didn't.'" (Emphasis added.)
Mrs. Hankerson's comment, made upon the initial entry of the police into Donald's room, is clearly indicative of her knowledge that the room contained property which might be considered suspect by the police. There was sufficient evidence to enable the fact finder to conclude that appellants knew stolen property was in the home.
The state not having cross-appealed the Court of Appeals' holding that the two counts of the indictment were offenses of similar import, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
SHANNON, LOCHER, HOLMES and KRUPANSKY, JJ., concur.
W. BROWN, Acting C.J., and C. BROWN, J., dissent.
SHANNON, J., of the First Appellate District, sitting for CELEBREZZE, C.J.