State v. Adkins

710 S.W.2d 525, 1985 Tenn. Crim. App. LEXIS 3327
CourtCourt of Criminal Appeals of Tennessee
DecidedNovember 20, 1985
StatusPublished
Cited by16 cases

This text of 710 S.W.2d 525 (State v. Adkins) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Adkins, 710 S.W.2d 525, 1985 Tenn. Crim. App. LEXIS 3327 (Tenn. Ct. App. 1985).

Opinions

OPINION

TATUM, Judge.

The defendant, Ronnie Lee Adkins, was convicted of receiving and concealing stolen property over the value of $200.00. He was sentenced to two concurrent 8-year terms as a Range II offender. After considering the several issues presented by the defendant, we affirm the judgment for receiving stolen property but reverse and dismiss the judgment of conviction for concealing stolen property.

The defendant introduced no evidence at his trial. The State’s evidence revealed that Jerry Walters, his wife and family stopped at a motel in Memphis on the night of November 10, 1983. Mr. Walters was moving his family to Memphis and was driving a 28-foot U-Haul truck loaded with their furniture, appliances, clothing, and “everything they had.” About 6:00 a.m. the following morning, Mr. Walters discovered that the U-Haul truck and its contents had been stolen.

On November 21, 1983, the defendant was interviewed by a Memphis police officer. A written statement given by the defendant was not introduced into evidence but the police officer summarized the admissions made by the defendant. The defendant told the officer that he had bought a quantity of merchandise on the late night of November 11, 1983 or early morning hours of Saturday, November 12,1983. He bought the merchandise from an individual [527]*527named Mike Brady who was unknown to him. The defendant did not know where Mr. Brady lived and knew nothing about him. This individual, Mr. Brady, came by the defendant’s residence and sold the defendant various household goods, toys, furniture and similar items for $500. The defendant obtained a receipt from Mike Brady for $500. The defendant told the officer that he took the merchandise to the Mid-South Auction House on Saturday morning, November 12, 1983, for resale by auction. He met an individual named Terry Plunk and a second individual by the name of “Montie” at the auction house. These individuals allegedly witnessed the receipt or bill of sale given to the defendant by Mike Brady.

Police could find no record of an individual named Mike Brady. The defendant furnished a telephone number for Terry Plunk but officers were unable to locate Mr. Plunk. The individual named “Montie” was never located.

Items of property that had been consigned to the Mid-South Auction House by the defendant were identified by Mr. Walters as being some of the stolen property. An antique Singer sewing machine and a quantity of paperback books belonging to Mr. Walters were recovered from the defendant. Through a specific lot number, other stolen items recovered from individuals and from secondhand stores were traced to the defendant through Mid-South Auction. Except for the sewing machine and books, all stolen property recovered had been delivered to Mid-South Auction by the defendant for resale. Business records established that at least some of the stolen property brought to the auction by defendant was sold on the night of Friday, November 11.

At the outset, we note that the convictions for both concealing and receiving the same stolen property cannot stand because the receiving and concealing grow out of the same felonious transaction. See T.C.A. § 39-3-1113. We reverse and dismiss the judgment of conviction for concealing stolen property and will only consider the issues applicable to the conviction for receiving stolen property. Although the defendant did not rely upon the provision of T.C.A. § 39-3-1113 either at trial or in his appellate brief, we find plain error in permitting both convictions to stand contrary to statute.

In attacking the sufficiency of the evidence, the defendant contends that there is insufficient proof to support the finding that the stolen goods received were worth in excess of $200. The defendant’s statement to the police officer that he paid Mike Brady $500 for the goods is strong evidence that the property was worth more than $200. This evidence is supported by photographs in the record showing a large quantity of property recovered.

Also under the issue attacking the sufficiency of the evidence, the defendant says that there is a fatal variance between the indictment and the proof. The indictment charges that the stolen property belonged to Jerry Walters. The proof shows that some of the property belonged to Mrs. Walters before she married Mr. Walters. Mr. Walters owned a Chinese gong that he bought before the marriage. The remainder of the property was bought by Mr. and Mrs. Walters during their marriage and was owned by them jointly as husband and wife. Formerly, Tennessee followed a strict variance rule, holding that if the ownership allegation in an indictment is laid in one named owner, and the proof reveals that the stolen property is titled in another, then the variance is fatal. Our recent decisions are more relaxed. The present rule as to variance is that if the indictment sufficiently identifies the transaction upon which the defendant is being prosecuted, so as to enable him to adequately prepare his defense and to protect him from being subsequently prosecuted for the same offense, then variance is not fatal to the indictment and conviction. See State v. Cox, 644 S.W.2d 692 (Tenn.Crim.App.1982). It is now firmly established that a variance is not fatal unless it is material and prejudicial. A variance must prejudice substantial rights of the defend[528]*528ant to be fatal. State v. Moss, 662 S.W.2d 590 (Tenn.1984).

Mr. Walters had possession of all the property contained in the U-Haul truck when it was stolen. Mr. Walters testified at first that he considered all of the furniture, dishes and similar items to be joint property. Later on cross-examination, it was established that certain items were “brought into the marriage” by Mrs. Walters. The remaining property, except for the Chinese gong, was bought after marriage.

Any legal interest or special property interest in property stolen will support an allegation of ownership. Mere possession as bailee will support an allegation of ownership in an indictment. Fiedler v. State, 479 S.W.2d 814 (Tenn.Crim.App.1972). In the present case, Mr. Walters had possession of all the stolen property but his interest in all the property was much more than mere possession. All of the property was purchased by the Walters as husband and wife or “brought into the marriage” by one of them. Mr. Walters had use of all of the property jointly with his wife and had a “special interest” in all of the property stolen. There is no fatal variance between the indictment and the proof.

The defendant next argues that he did not have guilty knowledge that the property was stolen. The courts of this State follow the so-called objective test for determining guilty knowledge, whereby its existence may be established by the circumstances surrounding the receipt of the property when such circumstances would charge a reasonable man with notice or knowledge or would put a reasonable man on inquiry which if pursued would disclose that conclusion. Patmon v. State, 524 S.W.2d 677, 678 (Tenn.Crim.App.1974); Kessler v. State, 220 Tenn.

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Bluebook (online)
710 S.W.2d 525, 1985 Tenn. Crim. App. LEXIS 3327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-adkins-tenncrimapp-1985.