Howard v. State ( 1988 )

Sognier, Judge,

dissenting.

I respectfully dissent to that portion of the majority opinion which affirms appellant’s conviction of burglary. The only evidence connecting appellant to the burglary was the fact that he was found in possession of property taken recently in the burglary. “Although there is still validity to the long-established rule that proof of recent, unexplained possession of stolen goods by the defendant is sufficient to create an inference that the defendant is guilty of the burglary of the goods, proof of recent, unexplained possession is not automatically sufficient to support a conviction for burglary.” (Emphasis supplied.) Bankston v. State, 251 Ga. 730 (309 SE2d 369) (1983). Thus, such evidence only gives rise to an inference that the defendant committed the burglary; however, if the only evidence supporting the conviction is the evidence giving rise to the inference (recent possession), then under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), such evidence must establish the offense beyond a reasonable doubt in order to be sufficient to support the conviction. Id. at 731; Williamson v. State, 248 Ga. 47, 56 (1) (c) (281 SE2d 512) (1981). In my opinion, the evidence does not establish appellant’s guilt of burglary beyond a reasonable doubt. While the presumption or inference here would meet the “more-likely-than-not” test (since appellant possessed stolen goods, it was more likely than not that he stole them), set forth in Leary v. United States, 395 U. S. 6 (89 SC 1532, 23 LE2d 57), if the presumption satisfied only the Leary test, the jury, “relying on this evidence alone, would be permitted to convict the defendant without finding that he was guilty beyond a reasonable doubt.” Williamson, supra. Since the only evidence that appellant committed the burglary was the fact that he was in possession of recently stolen property, the evidence is not sufficient to sustain his conviction of burglary under the standard of proof required by Jackson v. Virginia, supra. Id.; Bankston, supra.

Decided February 22, 1988. Drew R. Dubrin, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carole E. Wall, Assistant District Attorneys, for appellee.

Accordingly, I would reverse appellant’s conviction of burglary and affirm his conviction of all other offenses.