State v. Witham

544 A.2d 329, 1988 Me. LEXIS 230
CourtSupreme Judicial Court of Maine
DecidedJuly 27, 1988
StatusPublished

This text of 544 A.2d 329 (State v. Witham) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Witham, 544 A.2d 329, 1988 Me. LEXIS 230 (Me. 1988).

Opinion

GLASSMAN, Justice.

Michael Witham appeals from a judgment of the Superior Court, Piscataquis County, entered on the jury’s verdict convicting him of two counts of illegal possession of a firearm by a felon, 15 M.R.S.A. § 393 (1980 & Supp.1987) and five counts of receiving stolen property, 17-A M.R.S.A. § 359 (1983). Witham challenges the sufficiency of the evidence to support the verdict with respect to one of the firearms counts, and each of the receiving charges. Our review of the record discloses sufficient evidence for the jury to have convicted Witham on the challenged count of the possession of a firearm by a felon and four of the five counts charging Witham with receiving stolen property. We affirm the judgment entered on those counts. With respect to the remaining count of receiving stolen property, the State failed to introduce sufficient evidence from which the jury rationally could have found beyond a reasonable doubt that Witham had the requisite mental intent to have committed the offense. Accordingly, we vacate the judgment as to that count.

Pursuant to an investigation of the burglarizing of several camps in the Schoodic Lake area, Officer Larry Bickford of the Piscataquis County Sheriff’s Department obtained a warrant to search Witham’s home in Milo. Witham was at home when officers of the Brownville and Milo police departments arrived to execute the warrant. The police seized the following items from Witham’s house: a Pioneer stereo system, binoculars, a color television and a radio/cassette player. In addition, the police confiscated a Sears portable generator and a John Deere battery charger from Witham’s camper, which Witham had given the police permission to search. One day after the search, Witham brought an Aladdin kerosene heater and a black and white television to the sheriff’s department.

Because Witham had previously been convicted of a felony, the police also seized a number of firearms from the house. Officer Bickford testified that several rifles were found in each of two locked gun cabinets, a high-powered rifle and three chipmunk rifles were leaning against the outside of one of the cabinets, and a pistol lay on top of the other cabinet. The police seized and inventoried a total of approximately 15 firearms.

After a jury trial, Witham was convicted of two counts of the illegal possession of a firearm (Counts I, II) and five counts of receiving stolen property (Counts III-VII). Witham has conceded that the evidence is sufficient to support his conviction for the possession of a firearm as alleged in Count I. He challenges the sufficiency of the evidence with respect to Count II and the five counts charging the receiving of stolen property.

We first address the sufficiency of the evidence with respect to Count II, possession of a firearm by a felon on or about March 11,1987, the day the police searched Witham’s residence. To find a violation of section 393, the jury must find, beyond a reasonable doubt, that a person previously convicted of a crime punishable by one year or more of imprisonment owned, possessed or controlled a firearm, without a permit to do so. State v. Gilbert, 473 A.2d 1273, 1276 (Me.1984); 15 M.R.S.A. § 393(1) (1980). The defendant’s possession must be “conscious and knowing.” State v. Myrick, 436 A.2d 379, 382 (Me.1981); see also State v. Flaherty, 400 A.2d 363, 366-67 (Me.1979); 17-A M.R.S.A. § 31(3) (1983).1

[331]*331Witham contends that he did not possess or control the guns locked inside the cabinets and that he was unaware of the pistol on top of one cabinet. Even if we accept these arguments, the record discloses sufficient evidence from which the jury rationally could have found that Wit-ham knowingly had access to or control over the rifles leaning against one'of the gun cabinets. Officer Bickford testified that four rifles were outside the cabinet when the police arrived. He identified the rifle depicted in the photograph introduced into evidence by the State as one of those firearms. Although Witham’s brother testified that the rifles were not outside the cabinet, based on Bickford’s testimony, the jury rationally could have found, beyond a reasonable doubt, every element of the offense of the possession of a firearm by a felon. State v. Greene, 512 A.2d 330, 332 (Me.1986) (credibility of witnesses for jury); State v. Barry, 495 A.2d 825, 826 (Me. 1985).

We next address Witham’s contention that the evidence is insufficient to sustain his conviction for receiving stolen property. To obtain a conviction, the State had to prove beyond a reasonable doubt that Wit-ham “1) received, retained or disposed of property of another; 2) knowing or believing that the property was stolen; 3) with the intent to deprive the owner thereof.” State v. Currier, 521 A.2d 295, 299 (Me. 1987) (citations omitted). To establish that Witham had the requisite intent, the State must show that Witham “was aware of circumstances that would cause him to entertain the subjective belief that the property was stolen.” Id.; see also State v. Beale, 299 A.2d 921, 925 (Me.1973) (construing 17 M.R.S.A. § 3551 (repealed)).

Witham asserts that two of the State’s witnesses failed to positively identify their belongings, and consequently there was insufficient proof that the black and white television (Count IV) and the Sears generator (Count VI) were in fact stolen. In addition, Witham contends that the State failed to prove that he had a subjective belief that any of the items recovered from his house and camper were stolen.

The record discloses that the burglary victims’ identification of their property was sufficient to allow the jury to conclude, beyond a reasonable doubt, that the television and generator were stolen property. In addition, the evidence introduced on Counts III through V supports the finding that Witham believed the items to be stolen. Counts III through V allege receipt of the stolen Aladdin heater, color television and radio/cassette player (Count III); black and white television (Count IV); and the Pioneer stereo system and binoculars (Count V). The jury heard evidence that these items were stolen from three camps in the Schoodic Lake area; that the thefts occurred in March 1987; that the same persons committed the thefts; and that all of the items were sold to Witham for $25 by the persons who committed the thefts. All of the items were recovered from Wit-ham’s house.

Before purchasing the items, Wit-ham asked if they were stolen. The thieves explained the $25 price tag for the obviously valuable appliances by telling Witham that one of the men needed the money because he was AWOL from an army base. Based on this evidence, the jury could rationally have concluded that Witham “was aware of circumstances that would cause him to entertain the subjective belief that the property was stolen.” State v. Currier, 521 A.2d at 299; see also State v. Smith, 400 A.2d 749, 755-56 (Me.1979) (construing 17 M.R.S.A. § 3551 (repealed)).

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Related

State v. Flaherty
400 A.2d 363 (Supreme Judicial Court of Maine, 1979)
State v. Smith
400 A.2d 749 (Supreme Judicial Court of Maine, 1979)
State v. Myrick
436 A.2d 379 (Supreme Judicial Court of Maine, 1981)
State v. Greene
512 A.2d 330 (Supreme Judicial Court of Maine, 1986)
State v. Currier
521 A.2d 295 (Supreme Judicial Court of Maine, 1987)
State v. Beale
299 A.2d 921 (Supreme Judicial Court of Maine, 1973)
State v. Barry
495 A.2d 825 (Supreme Judicial Court of Maine, 1985)
State v. Gilbert
473 A.2d 1273 (Supreme Judicial Court of Maine, 1984)
State v. Geisinger
479 A.2d 1315 (Supreme Judicial Court of Maine, 1984)

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Bluebook (online)
544 A.2d 329, 1988 Me. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-witham-me-1988.