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Justices abandon 'mere possession' rule

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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.

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  1. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

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