State v. JonesState v. Jones
- Reporters:
- , ,
- Before:
- Hendley
HENDLEY, Judge.
This appeal is concerned with the propriety of instructing the jury with regard to the following presumption:
“B. The requisite knowledge or belief that property has been stolen is presumed in the case of an individual or dealer who:
“(1) is found in possession or control of property stolen from two [2] or more persons on separate occasions * * *”
Section 40A-16-11(B), N.M.S.A. 1953 (2d Repl.Vol. 6, 1972) .
Defendant was convicted of receiving stolen property contrary to
Defendant‘s two-fold attack on his conviction is based on the trial court‘s instruction Nos. 11 and 6 which read as follows:
“11. You are further instructed that the requisite knowledge or belief that the prоperty has been stolen is presumed in the case of an individual who is found in possession or control of property stolen from two or more persons on separate occasions.”
“6. * * *
“A presumption is a conclusion which the law requires the jury to make from particular facts, in the absence of convincing evidence to the contrary. A presumption continues in effect until overcome or outweighed by evidence to the contrary; but unless so outweighed the jury is bound to find in accordance with the presumption.”
Defendant‘s initial attack on these instructions is that they fail to comply with Rule of Evidence 303,
The instant instructions clearly violate R.Evid. 303(c), supra. R.Evid. 303(c), supra, speсifically mandates an instruction that the jury is not required to find the presumed fact simply because there is sufficient evidence of the basic facts. The state argues that instruction No. 6 substantially complied with this mandate in that it told the jury that the presumption could be overcomе by evidence to the contrary. The point, however, of R. Evid. 303(c), supra, is that even if there is no evidence to the contrary, the jury should be instructed that it is not bound to find in accordance with the presumption. See Committee Commentary to R.Evid. 303(b) and (c), supra. R.Evid. 303(c), supra, incorрorates the constitutional requirement that presumptions not be conclusive in criminal cases even if unrebutted. See Bollenbach v. United States, supra; United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Bray v. United States, 113 U.S.App.D.C. 136, 306 F.2d 743 (1962).
In the case at bar, instruction No. 11 told the jury that knowledge is presumed from a certain kind of possession. Instruction No. 6 told the jury that a presumption is a conclusion required to be made unless rebutted, and further that the
The second prong of defendant‘s argument is directed solely at instruction No. 11. Defendant‘s objection to this instruсtion at trial was that “* * * it is not a proper statement of the law and is not supported by the evidence before the jury.” On appeal defendant contends only that since the evidence did not demonstrate that the defendant possessed both items of property simultаneously, the instructions were unsupported by the evidence. Defendant contends that instructions pursuant to
Defendant is incorrect in this assertion. We first note, however, that the record supports defendant‘s contention that the evidence did not show simultaneous possession. Police officers recovered a stolen television set from the defendant‘s possession in late February of 1974. The set must have been stolen shortly before that time although the owner testified that the theft occurred in March or April. In early March, the police obtained information that the defendant had possessed guns stolen in December of 1973, but had already disposed of them. There is no evidence as to when defendant possessed the guns.
It is important to realize that while the legislature (in
The effect of R.Evid. 303(c), supra, is to abolish “true” presumptions in criminal cases. This puts the “presumptions” contained in
“B. The requisite knowledge or belief that propеrty has been stolen [may be] presumed * * *.”
The question, then, with which we must deal on this appeal is whether it is permissible to infer knowledge that property is stolen from proof of two separate instances of possession of property stolen from two or more pеrsons on different occasions.
It is settled law that evidence of a defendant‘s prior possession of other stolen property is admissible to establish the knowledge of a defendant that the property was stolen. State v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App. 1970). The evidence is admissible because it is permissible to infer knowledge from proof of more than one instance of stolen property. See State v. Lindsey, 81 N.M. 173, 464 P.2d 903 (Ct. App. 1969). The reason for this admissibility is that there is a rational connection between the facts proved and the ultimate fact inferred. Barnes v. United States, supra. The possession need not be simultaneоus possession but the time span between the non-simultaneous possessions must be reasonable. What is reasonable must be decided on a case by case basis. Under the facts of the instant case we hold the time span reasonable. There was a rational сonnection between the facts proved and the ultimate fact inferred.
Yet the jury was not properly instructed in the case at bar. Thus defendant concludes his argument with the assertion that a mandatory presumption that attributes guilty knowledge to one in non-simultaneous pоssession of property stolen from two individuals on separate occasions is unconstitutional. As stated previously, no objection was made to the mandatory aspect of the instructions. We therefore view defendant‘s final contention as being unreviewable unlеss it can be said that the error, if any, is fundamental or jurisdictional. State v. Jaramillo, 85 N.M. 19, 508 P.2d 1316 (Ct.App. 1973). The doctrine of fundamental error is applicable only if the innocence of the defendant appears indisputable or if the question of his guilt is so doubtful that it would shock the consсience to permit his conviction to stand. State v. Parker, 85 N.M. 80, 509 P.2d 272 (Ct.App. 1973). We have reviewed the record and conclude that the instant one is not such a case.
It is true that some constitutional violations may render a court incompetent to convict a defendant. Such jurisdictional errors may be raised for the first time on appeal. State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct.App. 1974). However, in this case, the jury was properly instructed as to all the essential elements of the crime. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973). The jury was instructed that defendant was presumed to be innocent and that his guilt had to be proved beyond a reasonable doubt. See State v. Harrison, 81 N.M. 623, 471 P.2d 193 (Ct.App. 1970). In short, we do not believe that the error alleged with regard to the instructions in the case at bar is such as divests the trial court of jurisdiction.
Oral argument in this case is unnecessary.
Defendant‘s conviction is affirmed.
It is so ordered.
WOOD C.J., concurs
LOPEZ, J., dissenting.
LOPEZ, Judge (dissenting).
I respectfully dissent.
There is no question that
The majority has completely distorted the issue of this case. The true question for decision is not, as is held above, whether a jury could infer knowledge or belief under
The majority, further, hides the admitted error of the court below in a cloud of dicta concerning “standardized inferences“: when the court lets the jury infer when it, arguably, did not know it had the right to infer. The majority might like to have
But after all the verbiage about “inferences” and “presumptions” (a distinction
The error in this case involves an evidentiary ruling, a violation of Rule 303, supra. The defendant, not being in a position to offer another instruction (he wishеd none), and not being in a position to offer other evidence on the matter (his case was closed), did what he could: he objected. As grounds for his objection, he stated that the trial court erred as a matter of law. Further, the matter involved a substantial right of the defendаnt: his right to a jury verdict on an essential element of the alleged crime. “* * * a peremptory ruling against the accused in a criminal case, even as to a single element of the crime, is abhorrent to the criminal law * * *.” McCormick on Evidence § 342 (2d Ed. 1972).
Nevertheless, granting that reasonable minds might differ as to whether defendant had met the burden of subsection (a) of Rule 103,
“(d) Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.”
The definitional problem, when you use “plain error“, is handled many ways:
“Thus it is said that `plain error’ means `error both obvious and substantial,’ or `serious and manifest errors,’ or `seriously prejudicial error,’ or `grave errors which seriously affect substantial rights of the aсcused.‘” Wright & Miller, Federal Practice and Procedure, § 856 (1969).
“This court is reluctant to consider objections raised for the first time on appeal. * * * We are considerably more reluctant to notice on our own motion, errors not raised below when the parties have not even urged us to do so. Nonetheless, we аre empowered to notice, in our discretion, `[p]lain errors or defects affecting substantial rights’ which were brought neither to our attention nor to the attention of the trial court. * * * We may do so when confronted with `unusual circumstances involving seriously prejudicial deficiеncies in the trial process,’ * * * or when `it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.‘” United States v. Bacall, 443 F.2d 1050, 1063 (9th Cir.1971).
The Plain Error Rule must be read in conjunction with the timely objection rulе (our 103(a)) which provides that no party may assign as error an instruction to which he has not objected before the jury retires. Despite the language of 103(a), a court may notice an erroneous instruction as plain error, particularly when some objection is madе, as in the instant case. Apodaca v. United States., 188 F.2d 932, 937 (10th Cir.1951). See cases in Wright & Miller, supra, at f.n. 97.
The “fundamental right” or “substantial right” denied the defendant in the case at bar was, again, the right to have his case determined by a jury. The mandatory instruction given by the trial court denied this right as to the essential element of intent.
An evidentiary matter being involved, this is precisely the situation for which the Plain Error Rule was designed. Compare State v. Sanchez, 86 N.M. 713, 526 P.2d 1306 (Ct.App. 1974).
Rule 303, and both the New Mexico and United States Constitutions were violated. Plain error occurred in its strictest form. Defendant‘s conviction should be reversed and the cause should be remanded for a new