Relevant background information
• Prior to 1970, the law on unexplained possession was relatively settled. It can be said that the rule was: [T]he exclusive, unexplained possession of recently stolen property is a circumstance from which the fact-finder may draw an inference of guilt. It was a fact to consider along with all the other facts and circumstances tending to show a defendant's guilt.
Fortson v. State, 919 N.E.2d 1136, 1141 (Ind. 2010)
See, e.g., Lawrence v. State, 192 N.E.2d 629, 632 (Ind. 1963)(citing McAdams v. State, 81 N.E.2d 671, 674-75 (Ind. 1948))(“The rule is that unexplained, exclusive possession of recently stolen property constitutes a circumstance from which a court or jury may draw an inference of guilt.”)
• However this Court's jurisprudence took a noticeable turn beginning in 1970 when the Court decided Bolton v. State, 261 N.E.2d 841 (Ind. 1970).
Fortson v. State, 919 N.E.2d 1136, 1142 (Ind. 2010)
• Since Bolton our courts have adhered to some variation of the rule that the unexplained possession of recently stolen property standing alone is sufficient to sustain a verdict of guilty of theft.
Fortson v. State, 919 N.E.2d 1136, 1142 (Ind. 2010)(emphasis added)
• [W]e return to this jurisdiction's original moorings and as such abandon the so-called mere possession rule.
Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010)
As applied to the offense of theft
• [T]he mere unexplained possession of recently stolen property standing alone does not automatically support a conviction for theft.
Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010)
Holloway v. State, 983 N.E.2d 1175, 1179 (Ind. Ct. App. 2013)
Bond v. State, 925 N.E.2d 773, 782 (Ind. Ct. App. 2010), reh’g denied, trans. denied(citing Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010))
• Rather, such possession is to be considered along with the other evidence in a case, such as how recent or distant in time was the possession from the moment the item was stolen, and what are the circumstances of the possession (say, possessing right next door as opposed to many miles away).
Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010)
Holloway v. State, 983 N.E.2d 1175, 1179 (Ind. Ct. App. 2013)(quoting Donovan v. State, 937 N.E.2d 1223, 1226 (Ind. Ct. App. 2010), trans. denied)
Bond v. State, 925 N.E.2d 773, 782 (Ind. Ct. App. 2010), reh’g denied, trans. denied(citing Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010))
See K.F. v. State, 961 N.E.2d 501, 508 (Ind. Ct. App. 2012), trans. denied(“[U]nexplained possession of recently stolen property is to be considered, along with other evidence, when determining whether the evidence supports a conviction for theft.”)
• In essence, the fact of possession and all the surrounding evidence about the possession must be assessed to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt.
Holloway v. State, 983 N.E.2d 1175, 1179 (Ind. Ct. App. 2013)(citing Donovan v. State, 937 N.E.2d 1223, 1226 (Ind. Ct. App. 2010), trans. denied)
Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010)
Bond v. State, 925 N.E.2d 773, 782 (Ind. Ct. App. 2010), reh’g denied, trans. denied(citing Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010))
• The trier of fact must assess all of the evidence instead of focusing upon one piece of evidence, such as possession of recently stolen property.
Holloway v. State, 983 N.E.2d 1175, 1179 (Ind. Ct. App. 2013)(citing Donovan v. State, 937 N.E.2d 1223, 1226 (Ind. Ct. App. 2010), trans. denied)
• For more information about the offense of theft, please review Theft.
As applied to the offense receiving stolen property
• As this Court observed almost a century ago, “[t]he rule that the possession of stolen property, the proceeds of a larceny, soon after the commission of the offense, unless explained, is prima facie evidence of the guilt of the person in whose possession the property is found, does not apply to the offense of receiving stolen property.”
Fortson v. State, 919 N.E.2d 1136, 1143 (Ind. 2010) (quoting Bowers v. State, 146 N.E. 818, 820 (Ind. 1925))
See Wertheimer v. State, 169 N.E. 40, 43 n. 1 (1929)(emphasis added)(“Where, as in the case at bar, there is no evidence to show that the theft was committed by some person other than the defendant charged with receiving the goods, such possession of goods recently stolen raises a presumption of theft, rather than of receiving stolen goods, and is not prima facie evidence that the possessor is guilty of receiving stolen goods.”)
• For more information about the offense of receiving stolen property, please review Theft.
In general
• One writer has observed: “[T]he rule on the possession of recently stolen property ought to be that there is no rule, per se. In this sense, there would be no rule of law on the subject. The exclusive, unexplained possession of recently stolen property would merely be another evidentiary fact, along with all the other facts and circumstances in the case, that tend to show the guilt of the defendant. As thus formulated, it would in no way prevent the trial court, the jury, or the appellate courts from making a reasonable inference of guilt when they are called upon to make their respective decisions. It would simply treat the fact of possession of recently stolen property in the same manner as any other fact from which reasonable inferences may be drawn.”
Fortson v. State, 919 N.E.2d 1136, 1143 n. 4 (Ind. 2010)(quoting Notes, The Presumption Arising from the Possession of Stolen Property: The Rule in Indiana, 6 Ind. L.Rev. 73, 90–91 (1972))