IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI SUPPLEMENTAL BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Jan :29: KA COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI XAVIER LARRY APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii SUPPLEMENTAL BRIEF FOR THE APPELLEE CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES FEDERAL CASES Amburgey v. Corhart Refractories Corp. Inc., 936 F.2d 805 (C.A. 5 Miss. 1991) th West v. Wright, 931 F.2d 262 (4 Cir. 1991) STATE CASES Brooks v. State, 695 So.2d 593 (Miss. 1997)... 3 Busby v. State, 160 So.3d 233 (Ct. App. Miss. 2014)... 1 Cheeks v. State, 843 So.2d 87 (Ct. App. Miss. 2003)... 7 Engbrecht v. State, 268 So.2d 507 (Miss. 1972) Graham v. State, 812 So.2d 1150 (Ct. App. Miss. 2002) Harper v. State, 355 So.2d 314 (Miss. 1978) Harris v. State, 61 Miss. 304 (Miss. 1883)... 1 Harris v. State, 908 So.2d 868 (Ct. App. Miss. 2005)... 1, 3 Huddleston v. State, 220 Miss. 292, 70 So.2d 621 (1954)... 3 Johnson v. State, 452 So.2d 850 (Miss. 1984)... 6 Jones v. State, 468 P.2d 805 (Okla. Crim. App. 1970)... 6 Jones v. State, 995 So.2d 146, (Ct. App. Miss. 2008).... 5, 6, 7 Minor v. State, 234 Miss. 140, 106 So.2d 41 (1958) New Orleans & G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241 (Miss. 1931)... 2 Riddles v. State, 471 So.2d 1234 (Miss. 1985) Robinson v. State, 749 So.2d 1140 (Ct. App. Miss. 1999) Rushing v. State, 461 So.2d 710 (Miss. 1984)... 5 ii

4 Shields v. State, 702 So.2d 380 (Miss. 1997)... 3, 5, 6, 7 Smith v. State, 278 So.2d 408 (Miss. 1973)... 7 Vinzant v. State, 99 So.3d 767 (Ct. App. Miss. 2012).... 1, 3 Weaver v. State, 481 So.2d 832 (Miss. 1985)... 3, 7 iii

5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI XAVIER LARRY APPELLANT VERSUS NO KA COA STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF FOR THE APPELLEE The Court of Appeals, on its own motion and by order of Justice Maxwell, has requested additional briefing from both parties in the above styled and numbered cause. The specific question to be addressed is... whether recent unexplained possession of admittedly stolen property is prima facie evidence of burglary. The State s answer to that question is a resounding, Yes. Harris v. State, 908 So.2d 868 (Ct. App. Miss. 2005) [ (U)nexplained possession of recently stolen property is prima facie, although no means conclusive, evidence of burglary. See also Busby v. State, 160 So.3d 233 (Ct. App. Miss. 2014) [Under certain circumstances, possession of recently stolen property can support a burglary conviction]; Vinzant v. State, 99 So.3d 767 (Ct. App. Miss. 2012), reh denied, cert denied 98 So.3d 1073 (2012) [ Possession of recently stolen property is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt (of burglary of a dwelling. )]; Harris v. State, 61 Miss. 304, (Miss. 1883) [ (T)he possession of recently stolen property is a circumstance from which the jury may infer guilt (of burglary.)] 1

6 The first order of business is to define the terms prima facie and prima facie evidence. Black s law dictionary defines prima facie as follows: At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary. [emphasis ours] BLACK S LAW TH DICTIONARY 1353 (4 ed. 1968). Prima facie evidence is defined by Blacks as follows: Evidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party s claim of defense, and which if not rebutted or contradicted, TH will remain sufficient. BLACK S LAW DICTIONARY (4 ed. 1968). Mr. Webster concurs: SELF-EVIDENT. Legally sufficient to establish a fact or a case unless disproved. WEBSTER S NINTH NEW COLLEGIATE DICTIONARY 934 (1983). th The Court of Appeals for the 5 Circuit has held that a prima facie case refers to evidence that creates a legally mandatory, rebuttable presumption that the proposing party should prevail. A failure to establish a prima facie case means merely that the fact finder is not required to find in favor of the proposing party. Amburgey v. Corhart Refractories Corp. Inc., 936 F.2d 805 (C.A. 5 Miss. 1991). Within the context of a civil case and the effect of a prima facie presumption of payment, the Supreme Court made the following observations in New Orleans & G.N.R. Co. v. Walden, 160 Miss. 102, 111, 133 So. 241 (Miss. 1931): When the party having the burden of establishing the issue of payment has adduced sufficient evidence to support the presumption of payment he has made out a prima facie case and need go no further, until his adversary brings forward evidence tending to rebut it. At that point the burden of evidence shifts, and the prima facie case will become the established case, if nothing further appears. * * * Prima facie evidence then is evidence which suffices for the proof of a particular fact until, 2

7 and unless, contradicted and overcome by other evidence. It is evidence which, standing alone and unexplained, would maintain the proposition and warrant the conclusion to support that which it is introduced. Within the context of burglary - and larceny as well - our case law provides that the unexplained possession of recently stolen property is prima facie, although no means conclusive, evidence of burglary. Harris v. State, supra, 908 So.2d 868, 873 (Ct. App. Miss. 2005). In the Harris case, an appeal from convictions of burglary of an inhabited dwelling, sale of a stolen firearm, and felon in possession of a firearm, we find the following language: * * * Our supreme [c]ourt has consistently held that unexplained possession of recently stolen property is prima facie, although no means conclusive, evidence of burglary. Brooks v. State, 695 So.2d 593, 594 (Miss. 1997). Likewise, our supreme court has held that possession of property recently stolen is a circumstance which may be considered by the jury from which, in the absence of a reasonable explanation, the jury may infer guilt of larceny. Fletcher, 168 Miss. at 365, 151 So. at 478. See also Brooks v. State, 695 So.2d 593 (Miss. 1997), citing Weaver v. State, 481 So.2d 832, 834 (Miss. 1985); Huddleston v. State, 220 Miss. 292, 70 So.2d 621 (1954). In discussing the sufficiency of the evidence, the Court in Harris cited and relied upon the case of Shields v. State, 702 So.2d 380, 383 (Miss. 1997), which we, likewise, cited and relied upon in our initial brief. We analyzed the same factors found in Shields and evaluated by the Court of Appeals in Harris and found the evidence sufficient. So also did the court in Harris, a case remarkably similar in both facts and law to the case at bar. While the cases of Busby and Vinzant, supra, unlike Harris, do not speak in terms of prima facie evidence, they do speak directly to evidentiary circumstances which, in the absence of a reasonable explanation of recent possession of the fruits of a burglary, give rise to an inference of 3

8 guilt of burglary. This sounds like prima facie evidence to us. Given this state of affairs we feel obligated to re-articulate and re-rely upon our response to Larry s sufficiency and weight of the evidence claim that appears in our initial brief. 5. THE EVIDENCE, VIEWED IN ITS ENTIRETY, WAS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION OF BURGLARY OF A DWELLING HOUSE. LARRY HAS FAILED TO DEMONSTRATE THE TRIAL JUDGE ABUSED HIS JUDICIAL DISCRETION IN OVERRULING LARRY S MOTION FOR A NEW TRIAL GROUNDED, IN PART, ON A CLAIM THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. AFFIRMATION OF THE JURY S VERDICT WOULD NOT SANCTION AN UNCONSCIONABLE INJUSTICE. Larry argues [t]he only evidence that Larry committed burglary came from inadmissible evidence of an out-of-court statement by William Jones. (Brief of Appellant at 16) In this posture, says Larry,... the evidence was insufficient as a matter of law to convict him of anything other than receiving stolen goods. (Brief of Appellant at 16) Larry further argues Judge Emfinger abused his judicial discretion in denying Larry s posttrial motion for a new trial as the verdict of the jury is against the overwhelming weight of the evidence. Perhaps Larry overlooks the fact the jury heard three seemingly conflicting explanations from Larry s own mouth concerning his possession of property recently stolen, two of them out-of-court statements made to Officer Martin, and the third explanation given at trial. (R ,166-67) Larry first told Martin the television and camcorder belonged to Larry himself. (R. 100) At the station house Larry told Martin he purchased the articles from a drug addict. (R. 100) 4

9 At trial Larry testified he purchased the television from a garage sale on Ellis Avenue. (R. 167) At trial Larry testified the camcorder belonged to the owner of the vehicle he was driving and that [w]e bought it from a store. (R 167) A reasonable and fair-minded juror could have found these conflicting explanations less than credible and that Larry burglarized the house at 109 Honeysuckle Lane. Perhaps Larry overlooks the fact he had been previously convicted in of receiving stolen property and this observation alone had the potential of diluting the credibility of Larry s general denial. Perhaps Larry overlooks the fact that when Officer Martin asked Larry: Where is the stolen TVs at?, Larry told him the TV was in the trunk. (R. 97) Perhaps Larry overlooks the fact the television inside the trunk of the car Larry was driving at the time of his unexpected rendezvous with Officer Martin was up for sale in south Jackson only an hour and six minutes, at best, after it was stolen from the home in Ridgeland. (R. 98, 110) Finally, perhaps Larry overlooks the fact that possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt of burglary. Jones v. State, 995 So.2d 146, (Ct. App. Miss. 2008) citing Shields v. State, 702 So.2d 380, 381 (Miss. 1997) [ (T)he possession of stolen articles, standing alone, may be sufficient to satisfy the beyond a reasonable doubt standard given sufficiently probative circumstances of possession. ]; Rushing v. State, 461 So.2d 710, 712 (Miss. 1984). In Rushing v. State, supra, 461 So.2d 710, 712 (Miss. 1984), we find the rule of law applicable to this case. Under Mississippi law, possession of recently stolen property is a 5

10 circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt. Harper v. State, 355 So.2d 314 (Miss. 1978); Engbrecht v. State, 268 So.2d 507 (Miss. 1972); Minor v. State, 234 Miss. 140, 106 So.2d 41 (1958). In order to give rise to an inference of guilt from the fact of possession, the State has the burden of proving possession by the accused of stolen property to have been personal, recent, unexplained, and exclusive. Engbrecht v. State, 268 So.2d 507, 509 (Miss. 1972). See also Johnson v. State, 452 So.2d 850 (Miss. 1984) [Presumption or inference that a defendant in recent possession of stolen property is guilty of burglary attaches unless he offers a reasonable explanation for his possession.] The plausibility or truth of a defendant s explanation for his possession of property recently stolen is for the jury, i.e., the fact finder, to determine. Riddles v. State, 471 So.2d 1234, 1237 (Miss. 1985). In the case at bar, Larry s possession was personal, recent, and exclusive, if not joint, and no reasonable explanation was presented by Larry. It was permissible for Judge Emfinger, as finder of fact, to give little weight to Larry s dubious explanations. [W]hen the fact of recent possession of stolen property is supplemented with other facts inconsistent with the idea that the possession is honest, it then becomes a question of fact for the jury to pass upon guilt or innocence of the defendant. Shields v. State, supra, 702 So.2d 380, 382 (Miss. 1997), relying upon Jones v. State, 468 P.2d 805 (Okla. Crim. App. 1970). The Shields case, supra, cited and relied upon in Jones v. State, 995 So.2d at 150, offers further guidance as follows: Extrapolating from that case we can arrive at common sense circumstances to be considered: 1. The temporal proximity of the possession to the crime to be inferred. 2. The number or percentage of the fruits of the crime possessed. 6

11 3. The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge. 4. Whether an explanation is given and whether that explanation is plausible or demonstrably false. th Id. see also West v. Wright, 931 F.2d 262 (4 Cir. 1991), rev. on other grounds, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). In the instant case, the inference must gain strength from the circumstances of possession as there exist no other corroborating evidence. (702 So.2d at 383) Insofar as we can tell, the Shields case contains the current state of the law in this area. See Cheeks v. State, 843 So.2d 87 (Ct. App. Miss. 2003), reh denied; Cunningham v. State, 828 So.2d 208 (Ct. App. Miss. 2002), reh denied, cert denied 829 So.2d 1245 (2002). Temporal (of or relating to time) proximity. A permissible inference gleaned from all the testimony is that the burglary of Cameron Williams s home occurred between the hours of 11:45 a.m. and 12:45 p.m. in Ridgeland. At 12:51 p.m. the stolen television was put up for sale over the telephone by William Jones, Larry s passenger, and was found in south Jackson hours later inside the trunk of the car that Xavier Larry was driving. The bottom line is that Xavier Larry would have been in possession of the stolen items in south Jackson an hour and six minutes, at best, from the time the items were taken from the home burglarized in Ridgeland. This passes muster with respect to the requirements of recency and temporal proximity. See Weaver v. State, 481 So.2d 832 (Miss. 1985), where we find the following: We need to also briefly emphasize that in order for an inference of guilt to arise from possession of stolen property, the theft must have been recent. This word recent is of some flexibility, depending upon the circumstances of each case. Weaver likewise meets this test, in having the jacket in his possession in not exceeding one month s time at the most following the burglary. See: Smith v. State, 278 So.2d 408, 410 (Miss. 1973). Number or percentage of fruits in possession. Several items taken. Only two of those items 7

12 recovered. Guilty knowledge. Admittedly, there is no flight involved in this case, and Larry certainly did not try to conceal the presence of the stolen chattels that were observed in the trunk of the car he was driving. In addition, Larry made no effort to conceal his identity. But, both Larry and Jones were expecting to rendezvous with another person, not a Jackson police officer who testified that when he inquired about the stolen TV Larry... had this shocked look on his face. (R. 97) This is the only Shields factor that may detract from the inference that Larry committed the burglary. The reasonableness of Larry s explanation. A reasonable and fair-minded fact finder, i.e., judge or jury, could have found beyond a reasonable doubt that Larry s explanation for possession was not plausible and was, in fact, demonstrably and inherently false. Indeed, there can be no question about it. The inconsistencies in Larry s versions prior to trial and at trial are conspicuous. Three (3) out of the four (4) factors articulated in Shields lend strength to the inference that Larry committed, for monetary gain, the burglary of Cameron Williams s home in Ridgeland. Williams, we note, gave a credible explanation for her mis-description - Vizio versus Emerson - of the flat screen television that was stolen from her bedroom. (R ) Larry complained at trial, and he complains on appeal as well, about the lack of any confession, eyewitness testimony describing the breaking at the time of the breaking, and the lack of any so-called physical evidence, Larry majors on the minors. The State s lack of physical evidence, viz., no fingerprint evidence or eyewitness testimony, is no impediment to Larry s conviction. See Robinson v. State, 749 So.2d 1140 (Ct. App. Miss. 1999) [Defendant s possession of property recently stolen was sufficient to support conviction of burglary notwithstanding defendant s alibi and lack of physical evidence. ] 8

13 In short, [t]he absence of physical evidence does not negate a conviction where there is testimonial evidence. Graham v. State, 812 So.2d 1150 (Ct. App. Miss. 2002), cert denied 828 So.2d 200 (2002). We reiterate for good measure. Larry s possession of the stolen items was personal, recent, exclusive, if not joint, and no reasonable explanation was presented by Larry. It was permissible for both Judge Emfinger and the jury, as finders of fact, to give little weight to Larry s dubious explanation of possession. CONCLUSION Appellee respectfully submits that no error, whether plain, reversible, or otherwise, took place during the trial of this cause. Accordingly, the judgment of conviction of dwelling house burglary, together with the sentence of twenty-five (25) years with five (5) years suspended and five (5) years of SPRS, imposed in its wake, should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

14 CERTIFICATE OF SERVICE I, BILLY L. GORE, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: HONORABLE DAMON R. STEVENSON Stevenson Legal Group PLLC P. O. Box 1922 Jackson, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 8th day of January, HONORABLE JOHN H. EMFINGER Circuit Judge, District 20 P. O. Box 1885 Brandon, MS HONORABLE MICHAEL GUEST District Attorney, District 20 P. O. Box 121 Canton, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL 10