Gaddie v. State, 400 N.E.2d 788

Gaddie v. State

400 N.E.2d 788

Ind. Ct. App.

1980

Check Treatment

*1 by сircumstantial proved may properly drawn logical inferences

evidence and (1976) 265 therefrom. Lisenko 841; Perkins fact, a (1979) Ind.App., 392 on the basis may be sustained

conviction Zickefoose alone.

circumstantial 507; Web Ind., Ind., N.E.2d 328. ster chemical record discloses

Here the sam three random on were conducted

tests of materi fifty pounds

ples taken pres tests confirmed seized and these

al to these In addition marijuana.

ence of offi investigating police

tests, one experience on his that based cers testified of material fifty pounds ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the entire Therefore, logical it was marijuana. Stayton jury to assume

reasonable for an marijuana possessed and Meadows We note thirty grams. amount excess ounces equal to 1.05 thirty grams ounces, an equals fifty pounds

while re the statute's in excess of

amount far State, (1976) Dixon v. also quirement. N.E.2d 908. Ind.App., 357

Judgment affirmed. RATLIFF, JJ., concur.

NEAL and appel- Indianapolis, for Pearcy, R.

Noble lant. GADDIE, Appellant, Robert Allen Gen., Sendak, Wesley Atty. L. Theodore Gen., Indianapolis, Wilson, Deputy Atty. T. Indiana, Appellee. STATE of appellee. for No. 2-278A41. Indiana, Appeals

Court SULLIVAN, Judge. District. Second his theft con appeals Robert Gaddie 7, 1980. Feb. 85-17- by ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍jury. I.C. following trial viction 1975).1 His 5-8(1)(a) (Burns Ed. Code is that the evidence appeal

contention on the verdict. was insufficient to 35-43-4-5 law, 24. For see I.C. 35-43-4-1 P.L. § present Acts Repealed (Burns 1979). Code Ed. *2 wheels, tires following: George gear, record reveals the mounted on radio wires Darnell, getting after off work on the eve- speakers, and a stereo radio in the back ning of June Gaddie, discovered his 1971 wagon. of the station the owner of Mercury Marquis approximately stolen. At vehicle, driving was and Marshall Wil- afternoon, 8:00 P.M. the next Darnell's liams passenger. was a Darnell was called automobile by police was found in the 2800 to the whereupon scene he identified the Street, block of Priscilla County. Marion stereo radio as the one originally in his 1971 stripped The automobile inwas a condition Mercury. without tires or wheels. The trunk was Williams, Defendant's witness Marshall broken оpen, panels ripped were door who was present case, not in the out, missing. and a stereo radio was While but who was serving prison a term on an- investigating stripped 1971 Mercury, conviction, other testified phoned that he Officer John Readle observed 1966 black Gaddie on day and asked to wagon parked Oldsmobile station approxi- picked up at the home of girl- Gaddie's mately men, forty fifty away. or feet Two that, friend. upon Williams stated Gaddie's identified at trial by Readle as Gaddie and arrival, placed he in Gaddie's car a stereo Williаms, Marshall wag- in the station girlfriend radio which Gaddie's had asked on engaged in activity by described Readle get Williams "to rid of". Williams further as exercising "either by getting themselves testified placed that he no other items in in and out of irregular the vehicle at inter- vehicle, any nor were other items in vals or working on the vehicle." in the vehicle Williams also denied Mercury Readle had the towed to the seeing ever Mercury, Darnell's al- Interstate Wrecking Company, where Dar- though he being admitted in the area at the nell identified the automobile. Readle re- strippеd time the Mercury was discovered. turned to the location Mercury where the Gaddie took the stand and testified that had been found and observed the black sta- radio, placed Williams the stereo as well as tion wagon still parked. Readle continued gear, automobile tires and radio into the patrol neighborhood and, upon pass- automobile. any knowledge Gaddie denied ing time, the location for the third noticed the items were stolen. wagon gone. station was Readle specifically thereafter Gaddie contends that there is wаgon discovered the station be- ing no indicating driven about he 5:00 P.M. in the knew the 2800 block property of Forest Manor found in Determining Avenue. his automobile was by sto police len. premised communication that This assertion is on plate license the erro registered vehicle, was not to that neous assumption that he charged, Readle was stopped the wagon. station tried and During his in- convicted for property 85-17-5-8(1)(f)2 vestigation, under I.C. Readle observed automobile provides I.C. 35-17-5-3 in full: or offered for sale played mercantile by any 2._ establishment, as defined IC 35-3- by general.-A person "Theft commits theft 2-4(c) package, bag from the or container (1) knowingly: when he product or on which such or merchandise is (a) obtains or exerts unauthorized control displayed, any package, bag, other or con- property owner; over or or tainer; (b) by deception proper- obtains control over (e) obtains threat control over property signature of the owner ty or a written any signature the owner or a written in- any instrument; or strument; or (c) alters, transfers or replaces, substitutes (f) obtains control ovеr label, any without authorization of the owner knowing to have been stolen tag marking or price price upon any property knowledge another, which be inferred may displayed or merchandise or offered for sale of such stolen by any establishment, mercantile as defined wherever occurred; the theft have 1971, 35-3-2-4(c), IC (g) brings into this state over which (d) transfers without authorization he has obtained theft, wherever owner or merchandise dis- the theft occurred; have subsec- charged under the defendant however, information, charges Gad- statute, court this same tion from subsection drawn language die in charge because the "technical" ignored statute, follows: as (1)(a) of that that, actuality, the State was determined REMEMBERED, That, on this IT "BE subsec- violation prove a intended to me, F. KELLEY JAMES day before Wilson, applied the *3 we thus (1)(f). In tion the Nineteenth Attorney of Prosecuting Miller, which forth following rule set WIL- Circuit, came personally Judicial applicable: is here contends Gaddie sworn, who, being duly WHITE LIAM W. ® _._ requi- that the is true While it . . ALLEN that ROBERT says upon his oath goods are stolen the knowledge that site day of 10th or about on GADDIE the cir- from or inferrеd may proved County of 1977, in the JUNE, at and A.D. surrounding the defendant's cumstances Indiana, commit- Marion in the State property of the and use possession knowing- in that he theft the crime of ted (1960), 289 Ind. v. State Dobson question, feloniously exerted unlawfully, ly, 455, long been the 673, it has N.E.2d 158 property over unauthorized that: law of this State accepted A Ford to-wit: DARNELL GEORGE possession that 'The rule Radio, val- of the Company Stereo Motor of a proceeds property, FIFTY DOL- HUNDRED ue of TWO of the of- the commission soon after ($250.00), in- CENTS AND NO LARS facie prima is fense, explained, unless DARNELL deprive to GEORGE tending person guilt of the of the evidence property said use and benefit of the found, is property whose » receiv- offense apply to the does not to sub- pursuant instructed jury was v. State Bowers property' ing stolen from the apparent is (1)(a), and it section (cita- 4, N.E. 818 146 under the proceeded record that the State omitted). tions in the actu- participated theory that Gaddie Therefore, since the the stolen al theft of itself, provide suffi- does not goods, (1968) 250 cites Miller Gaddie knowl- appellant had that evidence cient and Wilson Ind. goods in еdge that Ind.App. Dist.1973) 159 (2d State all the from stolen, determine we must knowl proposition for the with Wertheimer evidence, compliance Ind. character Goldberg edge [201 its there is sub- 40,] whether be inferred N.E. may not the de probative value alone.3 stantial Ind.Ann.Stat. charged under or fendant was have concluded jury could which Ed.Supp.1967), (Burns Code doubt 10-3030(1)(d) reasonable beyond a inferred § of innocence hypothesis every of LC. 85-17-5- reasonable statutory forerunner part knowledge on the regard to such although 8(1)(f). In Wilson deprive probably of such the owner will ment (2) eithеr: deprive or (a) of the use benefit." the owner use or intends to property; or of the benefit he was fact that does not contest deprive 3. Gaddie (b) the owner of some intends goods. value, possession of the stolen part which value and found in or all of price ownership shall be inferred whether here is not the issue posses established, particular marking or tag price merchandise on such but whether or sup any property dis- or merchandise will which here is a "circumstance" sion mercantile played upon appellate for sale scruti port or offered conviction Gaddie's Compare 1971, 35-3-2- ny. State ICby Mims v. establishment as defined 4(c);, with or uses, (c) or abandons conceals deprive knowingly in such manner as 1979) (2d Dist. Ind.App., Turentine benefit; use or owner of such (d) conceals or abandons uses, use, knowing abandon- concealment appellant was excluded." 304 be drawn from presented, the facts (Footnote omitted.) N.E.2d at 826. proves beyond which a reasonable doubt guilty. is At See also Pierce v. State point, unless the defendant sees fit Griffin v. proof come forward with (3d Dist.1978) Ind.App., to rеbut prima facie case and convince the he innocent, jury, from the evidence When, contrast, the defendant is tried it, presented convict the defend- theft, for the larceny type of as embodied appears ant. It to us that was the cir- within subsection concerning the rule presented cumstance here. The State effect of of recently stolen such a case. It thereby sustained the Freeling (2d was stated in proof. burden of Dist.1975) App. The defendant failed to any explanation offer that convinced the quoting from Durrett v. State *4 ' 12, 14-15, 595, 249 Ind. 280 N.E.2d jury." 596 as follows: Thus, in terms of what inference *" possession 'Execlusive possession drawn from the proper of stolen stolen, shown to have shortly been after ty, Supreme our apparently Court has es the larceny, unquestionably is a circum- tablished and adhered to a distinction be stance by to be considered jury, the and if tween specifically violations defined under proof the is made that such larceny was 35-17-5-8(1)(a) I.C. (formerly simple theft recently committed and there is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍no evi- or larceny) specifically and those defined dence explain possession the of the 85-17-5-8(1)(f) under 1.C. (formerly receiv defendants, a larceny conviction based on See, ing property). stolen g., e. Ward v. such evidence will ap- be sustained on (1973) 217, State 260 Ind. 294 N.E.2d peal.' (1957) Mims et al. v. State 286 Ind. 878, 880; Gilley 140 N.E.2d et al. (1949) 701, State 227 Ind. note, however, 88 N.E.2d We acceptance application and of this distinction has been less than uniform. The use of the common argument

Some is made in the brief that law inference has been criticized even in its no proof has burden of in a application larceny burglary. criminal case. We have here no such question (1971) the dissеnts in Gann every before us. v. State 256 Ind. successful 429, prosecution Vaughn (1971) criminal there 269 N.E.2d usually v. State comes a 678, time when the prima State establishes a and Bolton v. case, giving consideration to all le- State 261 N.E.2d 841.4 facie gitimate and reasonable inferences that Furthermore, in Wilson v. 304 question validity 4. The jury upon of the appeal. common We do not think that a sufficiency law inference in the context of the right any power court has or to instruct support of the evidence to a conviction jury must be proof that the of certain facts raises distinguishеd question proprie of the presumption against a the defendant in a ty instructing jury availability as to the criminal but case, court should more dichotomy or existence of the inference. The properly jury instruct that all facts and explained in Dedrick v. State 210 circumstances as shown 259, 278-79, Ind. 418: determining should be considered them in possession by guilt "Exclusive the defendant of or innocence of the defendant." recently goods stolen is a circumstance to be Gann v. Compare and, jury, considered if the state (2d Dist.1978) v. State 381, with Phillips Ind. proves goods have been (1st App., 666, Underwood Dist.1977) Ind.App., recently stolen, soon thereafter (modified 367 N.E.2d 4 defendant, found in the Sansom v. State part by explaining there is no evidence in the record which case was overruled on oth defendant, of the and if the grounds er Elmore Ind., State proper under instruction concludes that Dist.1975) 893) (1st and Abel guilty, the defendant was such evidence Ind.App. would be sufficient to sustain the verdict of 1978)Ind.App., 380 N.E.2d the defend apparently impliedly this court of the common rejected applicability with and tried for ant was larceny receiving to either law inference correctly The court larceny type of theft. Although the defendant concerning the inference to applied the rule Wilson, charged under subsection who was be drawn recently was found theft, type proceeded but to state for this reversed, stating that we Indiana, unexplained posses that "[in proved neither a "the State property may give recently sion of (f), the element of scien- (a) crime possessor ei rise to the inference that both, ter, having never been common to ther committed the theft or knew that the at n.1.5 proven." 304 N.E.2d (em stоlen." Id. at 598 property had been spectrum, At the other extreme phasis supplied). This dictum must be tak however, always recog has not this Court possession of en to mean that mere In Ruhl and nized a distinction. an will Dist.1974) Ind.App. (3d knowledge of its character for the applied the Third District theft, type since to state that one who prop actually commits a theft knows of the property to affirm convictions for a erty's stolen character is to utter a truism. offense.6 The court cited Lawrence v. (1963)244 The court in Mack cited Linnemeier v. (3d larceny casе. In Mack v. State Dist. *5 to obtain there was no control",

5. In in "intent "pos- our Wilson analysis retrospect, misinterpreted precise have confused and session"; thus of the inference application was never an issue. function rule with to inference respect larceny receiving property. Judge and With expressed The view in the dissent of deserving respect. allowed, latter if Shields is of attention and offense, inference, permit would the conclusion that the defendant The "exclusive is ex possession" knew In the items were stolen. difficult in as evidenced tremely application, by givеn is since is a is, unnecessary, difficulty perhaps the case before in us. that one who commits the actual theft knows part, explained by the view that the inference is that the in item is stolen. The inference larce- wholly policy one created out of considerations act was therefore, is that committed ny, practical necessity logic than out of rather the defendant. Thus, our statement Wilson or out of rational association between the facts concerning applicability of the inference to proved and the inferеnce derived from those the "element common scienter, both", to facts. Cf of Ulster County County Court misleading. 99 S.Ct. Allen 442 U.S. precise It is in this context that the definition L.Ed.2d 777. "possession", contemplated as in the com perhaps It is for this reason that the views of mon rule, law inference becomes of paramount majority Judge Shields and those of the here importance. "possession" If is defined in "exclusivity" upon ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍clash such factors as "physical terms of control with the intent to joint in terms of access and control, possession exercise such control on his own Wil behalf", and in terms "conspiracy, confederacy liams v. State necessary concerted actions" element of as "knowledge" require then the "joint exclusive possession". (1), ment under section common to both sub might question One an infer- the fact than (1)(f), sections be must established knowledge ence of character of with no assistance is, inference. That "receiving for of a property, purposes before the inference from is al conviction, is not from property" permissible lowed, the "intent to control", exercise whiсh unexplained recently "exclusive "knowledge" necessarily that one incorporates property", permissible while it is infer has obtained must be control, established. possessor that such a is the actual thief of that State, Young 332 N.E.2d Supreme Be that as it the law in Indiana property. may, Court never reached the posture. change remains in that If a is to be question knowledge whether of the stolen char- it must be our acter of certain items could be inferred from Court. Supreme made, they the fact that were found in the back seat transfer, our Court reversed Upon Supreme of defendant's car. The court held that conviction, Young's having denied the co-de- prove State failed to that the defendant knew petition Rubhl's for transfer. fendant he had obtained control over the items. In words, 332 N.E.2d 103. See Footnote showing other since there was no provide knowledge in- 19717 to that (1972) 259 Taylor Linnemeier, "may In that was stolen another charged, tried and convicted of such stolen be inferred theory engaged under the that he had property, .." The Third District the actual theft. The court therein stated: apply provi nevertheless chose not to this "Appellant acknowledges the existence of apply the common sion and continued possession of unexplained the rule that distinction, stating in law Stocklin v. give property may rise to an supra, at 864: possessor inference that the either commit 1971, 35-17-5-8(1)(f) "Although IC knowledge ted the theft or had of the char 'knowledge may states that be inferred acter of the Hancock v. State proper of such stolen Bolton .,' ty goods, . . itself, provide does not sufficient evi Id., 841." at 376. knowledge dence the accused had However, Taylor, Hancock and Bolton all goods were stolen. charged, deal who were with defendants (1968), 250 Ind. theory tried and convicted under the (1973), Wilson v. they engaged had in the actual theft of the Ind.App. see Har Thus, we question. fail to find graves (1972), authority apparent Third District's for the (Original emphasis.)8 194." Ruhl, position in Mack and Linnemeier knowledge mon, of the stolen nature of application, vel to be accorded possession. be inferred from its mere Supreme statutory provision by this our fact, point the Third District's state yet determined. Its most Court has holding ment in thоse cases contradicts its expressly dealing with the recent decision Ind.App., Stocklin v. State common law inference inapplicability of the the offense context, sufficiency of the evidence in the of, Apparently cognizant possibly dis- was Miller with, *6 satisfied this common law distinction prior legislative to the between which was rendered larceny receiving prop- stolen amendment.10 erty, legislature the amended subsection 1971, 458, 7. Acts PL. § ren- Court, Another decision our Supreme State, subsequent supra, dered to Miller v. 236 support by 8. Of the cases cited for the court in 173, applied N.E.2d but which LC. 35-17-5-3 Stocklin, State, only supra, Wilson v. 304 (1)(f), to the amendment of section af- prior 824, remotely supports even the nonrec receiving proper- stolen firmed a conviction for ognition statutory language allowing of the the (1970) 374, 265 255 Ind. ty. Cochran Although inference. was rendered sub Wilson did not there, however, N.E.2d 19. The Court sequent to the 1971 amendment to section with inference from posses- deal the expressly (1)(£), only impliedly the decision dismisses the supported sion rule since the conviction applicability statutory-supplied of the aрart additional circumstantial evidence (1)(f) supra, for a offense. Miller v. items. the defendant's 173, as earlier was rendered noted, prior Supreme Miller v. State the remains legislative Hargraves to the amendment, v. concerning the in- Court's definitive statement 543, (1st Dist.1972) State applicability of the inference from 194, (1)(a) dealt with a offense. receiving of stolen to the offense of stolen property. State, supra, 9. The Third District in Griffin v. 372 N.E2d 497, cited v. supra, 10. We observe to the Indiana that, subsequent 103, proposition for the that exclu- leg- and the Court's decision in Miller Supreme unеxplained possession sive of stolen codifying in- islature's amendment to the receiving offense, would not receiving a conviction for for the the United ference goods. reading Young, stolen ever, A close Supreme of how- States Court in Barnes v. United 2357, upon (1973) indicates that turned the failure of States 412 U.S. S.Ct. prove constitutionality the State to the defendant knew he had of L.Ed.2d sustained the control over the items. It did not deal with the common law inference from the receiving goods whether the defendant knew that for the offense of 5, supra. goods. were stоlen. See Footnote stolen supra, Capps also unable to derive a satisfac See we are While (1976) State between tory rationale for this distinction larceny,11 we receiving property and stolen supra note Cochran supra note not apply to the law accord compelled feel Supreme Court's most recent ance with our results are withstanding anomalous holdings subject, possible.12 on the here, directly applicable of further While not In Green v. Supreme held that our Court the Barnes court also note is the instructing recognized propriety charging gen- has the prosecution option concerning availability bringing specific of the inference. Id. eral under or of 839-47, charge at 93 S.Ct. at 2359-2364. See also The court under the other subsections. ~ Allen, County County 550: therein stated at Court of Ulster attorney 99 S.Ct. 2213. opinion, prosecuting has "In our option determining he whether or not theory The could be advanced. refusal 11. One charge specific desires to make the under type receiving apply to the inference statute, section of the or to some specified originated offense have in a context where charge general in nature when the make charged larceny with both a defendant was evidence is not certain as to methods receiving situation, In such gain The broadness of Para- used to control. is inference, with decision, respect (a) graph greater is no than the statute which only "guilty guilty", or not but also "larce not originally defined or its ny receiving ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍goods". As stated in definition under the common law. (1929) 201 Ind. 581- Wertheimer v. State n.1; "Where . . . 40, 44, 169 N.E. there is no evidence to show that the theft was statement that we . . to the Contrary person legislative guidance than committed some other the de are without Coates v. charged receiving goods, 357, 359, fendant with goods recently stolen raises a legislative we believe that intent theft, receiving presumption than of rather guide interpretation is and the set out prima goods, and is not facie there other the statute. The fact are receiving possessor guilty is included offenses which are more narrowly > goods." (Emphasis supplied.) prohibit pros- defined does not the state from ecuting light provision under a broader of the stat- Werthеimer, of the statement the de- refusal the inference where apply ute, such as the one this case which covers fendant is with 'unauthorized of the goods original be a distortion ration- the owner.'" ale for distinction. Commonwealth particular language required to effect a Compare Adams 479 Pa. 388 A.2d general charge (1)(a), and avoid a thus despite wherein the inference was allowed problematical. Compare specific charge, indicating absence of evidence the theft was Mentzer committed another. Young v. State, Arising Nоte, From The Presumption this arises as to scenario, Given Property: Possession Of Stolen The Rule In how and when the *7 (1972), 6 Ind.L.Rev. a Indiana, 73, 91, n.95 for apply. May prosecu- will criticism of the distinction. See also Footnote charge (1)(a) tion under to obtain the inference 5, supra. (1)(f) though even a offense? intends prove determining reviewing must in court, Or In Coates v. State look behind the evidence, sufficiency (1)(a) N.E.2d 640, it was held that subsections charge (1)(f) (1)(d)] separate and to the evidence order to determine related to and [then availability of the inference? distinct оffenses. The court stated Coates weighing add proof The decisions on this there exists a failure of where a (1)(f) enlightenment, under but the evi- even to be no some appear (1)(a) dence indicates a See at odds with the Green decision. offense. also State, (3d Dist.1975) Freeling supra, Mentzer v. impermissible although body 296 N.E2d 136. An vari- of the affidavit read ance will also be an affidavit language found where and the obvi- of the evidence charges (1)(b) prosecutor theft under and a verdict is ren- ous intent of both the and defense (1)(a). litigate (1)(f) dered under Lawrencе was to a offense. Never- attorney theless, applied Ind. this court the common law however, Apparently, charge stating be a for it was Also, charge Hargraves brought which controls. and a conviction although specific there obtained for a offense defined within the various other 35-17-5- suggesting subsections of IC. a to be evidence appeared the evidence is agree I with Gaddie that possession of the stolen Gaddie's of support his conviction insufficient at bar falls within the rule. The in the case Contrary to of the stereo radio. explanation an theft offered that Gaddie automatically "explain" posses- majority's position, Gaddie's does not does not fall within impermis- so as to render the inference sion "exclusive is entitled to disbe- sible. The trier of fact Ward v. story. lieve the defendant's inference. His property" exclusive, any nor is there 796; was not Linnemeier v. radio supra, 294 N.E.2d confederacy conspiracy, evidence of a as earlier stated, Gaddie and Mar- the circumstances concerted action between totality the time of the theft permits guilt. shall sinсe a conclusion may not joint possession. Guilt exclusive Furthermore, the fact that Gaddie was of recent- be inferred from mere possession was not alone in the car when ly the inference. discovered does not invalidate linking Nor do I believe the evidence Both Gaddie and Marshall were observed location of the Gaddie and Marshall to the stripped at the location of the automobile. discovery after its stripped vehicle soon one-half hours la Approximately one and suf- incriminating permit a rea- ficiently as tо ter, they were discovered in the factfinder sonable stripped taken from the ve intent knowing had Gaddie Although expla an supplied hicle. Gaddie deprive. Strode v. State possession, nation for the was enti all, Gad- Ind.App., After explanation, especial tled to disbelieve merely observed in die and Marshall were ly light discrepancies in Gaddie's parked approxi- and out of Gaddie's vehicle respective versions. Marshall's fifty feet from Darnell's mately forty items, coupled with possession of the stolen day vehicle a after the vеhicle was stripped linking both men to additional evidence majority stolen. must assume stripped vehicle soon the location of the was removed from Darnell's stereo radio light discovery,13 after its the common joint place time and because car at inference, sufficiently supports law Gad- found. possession could then be exclusive die's conviction of theft under I.C. 85-17-5- that, I would If evidence of there 8(1)(a) Bolton v. However, majority. there is agree with the 841; State, supra, Lawrence I must dissent. not and Mims Gilley v. supra note Dist.1979) (8d Ind.App., Moore v.

N.E.2d 1280.

BUCHANAN, J.,C. concurs.

SHIELDS, J., opinion. dissents with

SHIELDS, Judge, dissenting.

I dissent. *8 "a crimе In Mims v. the court reversed because offense, Yet, court, presented proven." evidence of defend- when with had not been com- proximity pare com- to the scene of Wilson v. ants' together with evidence of their mitted crime Pierce where, although charge in each case was items, found it "diffi- giving contemplate rise cult to a state of facts re- this court nevertheless proceeded guilt." probable at Id. to a more likelihood view the of the evidence for a sufficiency offense, following seemingly thus the Green decision.