Brisker v. StateBrisker v. State
- Reporters:
- ,
- Before:
- Shaw, McMillan, Cobb, Baschab, Wise
At trial, Brisker moved for a judgment of acquittal at the close of the State‘s case and at the close of all the evidence, contending that on the charge of receiving stolen property in the first degree, there was no evidence indicating that she “received [the vehicle], concealed it or did anything to aid another in concealing the vehicle” and that there was not “sufficient evidence to make a prima facie case showing that she had knowledge that the vehicle was stolen.” (R. 95-96.) On appeal, Brisker states, “Although the State did show that the automobile had been stolen, and did show that there was reason to have knowledge that the vehicle was stolen, by the broken steering column, there was no evidence showing that [Brisker] was in actual or constructive possession of the stolen property.” (Brisker‘s brief at p. 9.)
Thus, Brisker‘s only argument on appeal is that the evidence presented at trial was insufficient to establish that she was in actual or constructive possession of the stolen vehicle and that her motion for a judgment of acquittal should have been granted. We must agree.
As previously noted, Brisker was convicted of receiving stolen property in the first degree, a violation of
“(a) A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen.”
Section
“The concept of `possession,’ for purposes of the receiving stolen property statute, implies control. `It is undoubtedly true that, in order to sustain a conviction for receiving stolen property, the defendant must be shown to have had a control over the property.’ Booker v. State, 151 Ala. 97, 99, 44 So. 56, 56 (1907). See also Milam v. State, 240 Ala. 314, 317, 198 So. 863, 865 (1940) (`[t]he defendant must be shown to have had control over the property for an appreciable moment of time.‘) . . . However, `[a]ctual physical control is not necessary to establish possession. Possession is to be determined by examining all of the surrounding circumstances.’ Cheatham v. State, 431 So.2d 1350, 1354 (Ala.Cr.App.1983).”
At trial, the only evidence presented by the State was that the stolen vehicle was
“By this opinion we do not imply that a passenger in a stolen vehicle may never be convicted of receiving stolen property. We merely hold that, in this particular case, the State failed to present any evidence indicating that the appellant had any control over the vehicle. `Because the State has failed to prove an essential element of the charged offense, the appellant‘s adjudication of delinquency on the charge of receiving stolen property must be reversed and a verdict rendered in his favor. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). See also L.M.A.W. v. State, 611 So.2d [497, 498 (Ala.Cr.App. 1992)].‘”
J.W.B. v. State, 651 So.2d 73, 76 (Ala.Crim. App.1994) (emphasis in original). See also B.B. v. State, 778 So.2d 258 (Ala.Crim.App. 2000), which quotes extensively from J.W.B. We find J.W.B. and B.B. to be dispositive of the issue presented in this case.1
Based on the foregoing, the judgment of the trial court on the charge of receiving stolen property in the first degree is reversed and a judgment on that charge is rendered in favor of Brisker.
REVERSED AND JUDGMENT RENDERED.
McMILLAN, P.J., and COBB and BASCHAB, JJ., concur. WISE, J., dissents, with opinion.
WISE, Judge, dissenting.
I respectfully dissent from the majority opinion reversing the appellant‘s conviction and rendering a judgment in her favor based on its conclusion that the State failed to present any evidence that demonstrated that Brisker was in actual or constructive possession of the stolen vehicle. I disagree with the majority‘s attempt to distinguish that fact in Brisker‘s case from the facts in Bass v. State, 701 So.2d 44 (Ala.Crim.App.1996). In my opinion, there was sufficient evidence presented to submit the question of Brisker‘s guilt to the jury for its determination.