Unexplained Possession of Recently Stolen Goods In Florida

In State v. Young, 217 So. 2d 567 (Fla. 1968), the Supreme Court of Florida stated: The appellate court is obviously under a misapprehension as to the rule of evidence respecting unexplained possession of recently stolen goods. The rule does not create a presumption of law, under which the burden is shifted to the accused to produce evidence to rebut the legal presumption of the existence of the operative facts. It is simply a rule relating to circumstantial evidence from which the jury has the right to infer guilt of larceny or of breaking and entering with intent to steal. Moreover, the inference of guilt that the jury may infer from the unexplained possession of recently stolen goods does not arise from the possessor's failure to explain or demonstrate by evidence of exculpatory facts and circumstances that his possession of the recently stolen goods is innocent. It is the fact of possession that provides the basis for the inference of guilt. There is, however, no mandatory duty to explain possession of the goods. The accused may explain his possession at the appropriate time, but he is not required to do so. Even if he does come forward with an explanation, the jury is not required to believe it. It can be seen, therefore, that the rule of evidence respecting possession of recently stolen goods is no different, in kind, from the rule respecting the probative value of any other circumstantial evidence. Flight, concealment, resistance to a lawful arrest, presence at the scene of the crime, incriminating fingerprints -- the whole body of circumstantial evidence relevant in a given case -- are all incriminating circumstances which the jury may consider as tending to show guilt if evidence thereof is allowed to go to the jury unexplained or unrebutted by evidence of exculpatory facts and circumstances. Some circumstantial evidence -- e.g., flight or concealment -- is not sufficient, standing alone, to warrant the jury in returning a verdict of guilty. In the case of possession of recently stolen goods, however, the inference that the possessor is the guilty taker is so strong that the rules of evidence permit the jury to return a verdict of guilty on this one circumstance alone if the defendant allows it to go to the jury either unexplained or with an explanation that is so palpably unreasonable and incredible that the jury rejects it entirely. Id. at 570-71. Furthermore, like Florida, other states have addressed and approved of this type of jury instruction. In Hall v. State, 473 A.2d 352 (Del. 1984), the Supreme Court of Delaware opined: Defendant may contend that any instruction as to a rebuttable presumption which is now explained as a permissible inference arising from the possession of recently stolen goods would constitute an improper comment on the evidence .... However, such contention would be without merit. A forbidden comment on the evidence or a charge as to matters of fact would consist of comments such as an expression of opinion as to the credibility of one witness' testimony as opposed to that of another witness, or the expression of a view that one piece of evidence should be given more weight than is given to specified conflicting evidence. It is not a comment on the evidence for a judge to explain the legal significance which the law attaches to a particular factual finding provided that it is clear to the jury that the judge is not expressing an opinion as to the existence or non-existence of the underlying facts. Id. at 356; See also State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (Ariz. Ct. App. 1980) (finding a jury instruction on possession of recently stolen property not a comment on the evidence). In People v. Whittaker, 45 Ill. 2d 491, 259 N.E.2d 787 (Ill. 1970), the Illinois Supreme Court also addressed an instruction on the inference to be drawn from possession of recently stolen property. The court said: Finally, defendants contend that People's instruction No. 2 violated their constitutional right to remain silent. the instruction states: "The Court instructs the Jury that if you find the exclusive possession, shortly after the commission of a theft or burglary, of stolen property, the proceeds of the crime, if unexplained, may of itself raise an inference of guilt of the person having such possession, sufficient to authorize a conviction in the absence of any other evidence of facts or circumstances in evidence which leave in the mind of the jury a reasonable doubt as to the guilt of such person." They argue that instructing the jury with regard to this common-law presumption, amounted to a comment on their failure to testify and, as such, constituted a violation of their fifth amendment rights as set forth in Griffin v. California. The presumption has existed in this jurisdiction since at least 1850 and continues today as a well settled principle. The validity of its use as a jury instruction has been sustained even as to an attack identical to that raised here. Whittaker, 259 N.E.2d at 789-90; accord State v. Burch, 179 N.J. Super. 336, 432 A.2d 108 (N.J. Super. Ct. App. Div. 1981) (upholding a jury instruction on possession of recently stolen property against an attack that the instruction was an improper reference to the defendant's failure to testify). In State v. Singleton, 210 Kan. 815, 504 P.2d 224, 226-27 (Kan. 1972), the Kansas Supreme Court held that giving such a jury instruction is not erroneous where evidence has been introduced to establish that a burglary has occurred, that the stolen property has been identified, and that the defendant is the person in possession of the identified property. A Georgia appellate court in Martin v. State, 254 Ga. App. 40, 561 S.E.2d 154, 155-56 (Ga. Ct. App. 2002), likewise held that such an instruction is permissible when a defendant is found to be in possession of stolen goods, for the defendant can always rebut the inference by explaining to the jury the reason for the defendant's possession, though the jury is certainly free to accept or reject the defendant's explanation. Similarly, in Dinkins v. State, 29 Md. App. 577, 349 A.2d 676, 679 (Md. Ct. Spec. App.), aff'd, 278 Md. 238, 362 A.2d 91 (Md. 1976), the Maryland Court of Special Appeals upheld the constitutionality of such a jury instruction stating that it is a "traditional common law inference deeply rooted in our law."