ILNews

Justices abandon 'mere possession' rule

Back to TopE-mailPrintBookmark and Share

The Indiana Supreme Court's decision Thursday abandoned the "mere possession rule" when it comes to convictions of theft and receiving stolen property and restored the state's original view that the possession of recently stolen property should be considered with other evidence in the case.

Since Bolton v. State, 254 Ind. 648, 261 N.E.2d 841 (1970), the Supreme Court's jurisprudence "took a noticeable turn" and caselaw decided after Bolton adhered to some variation of the rule that unexplained possession of recently stolen property standing alone is sufficient to support a guilty verdict for theft, called the mere possession rule, wrote Justice Robert Rucker. However, in Thursday's case, Kail Fortson v. State of Indiana, No. 82S04-0811-CR-592, the justices unanimously decided to revert to what the jurisdiction had previously held before Bolton: the mere unexplained possession of recently stolen property standing alone doesn't automatically support a conviction of theft.

"In essence, the fact of possession and all the surrounding evidence about the possession must be assessed to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt," wrote Justice Rucker, noting this also applies to the rule concerning the charge of receiving stolen property.

Kail Fortson was driving a truck police stopped because they knew it had been reported stolen just a few hours early. Fortson was charged and convicted of receiving stolen property. Fortson appealed his conviction challenging the evidence and argued the state hadn't proved he had knowledge the truck was stolen. The Indiana Court of Appeals split and reversed Fortson's conviction.

The high court agreed with the majority's reasoning for overturning Fortson's conviction: there was no evidence Fortson attempted to conceal the truck from the officers or physically resist arrest, nor did he provide evasive answers. The state could only prove he was in possession of the recently stolen property but not that he knew the truck was stolen.

"And with our holding today, the same conclusion would obtain had Fortson been charged with theft as opposed to receiving stolen property," wrote the justice.

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

ADVERTISEMENT