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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. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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