State v. Ratliff

OPINION

DWYER, Judge.

This appeal as of right arises from appellant’s conviction for concealing stolen property under the value of two hundred dollars, T.C.A. § 39-3-1113. Appellant was sentenced to confinement for five years as a Range II aggravated and persistent offender.

The first issue questions the sufficiency of the evidence to support the verdict. The evidence reflects that during March of 1983, the home of Mr. Bill Helms on Sprout Springs Road in Hamblen County was burglarized. On March 21, 1983, the appellant’s wife contacted the Hamblen County Sheriff’s Department. She consented to a search of her apartment at 1140 Kennedy Circle. When four officers arrived to conduct the search, she handed them two tablecloths and an ashtray. At the trial, Mr. Helms positively identified one of the tablecloths as having been stolen from his home because his wife had made it. He testified that the other two items were similar to items stolen from his home. The appellant’s wife testified that during March of 1983, the appellant resided with her and her three children at .1140 Kennedy Circle.

The appellant did not testify but offered proof that on or about the time of the burglary he had suffered a pelvic fracture that prevented him from walking without crutches.

Appellant’s unexplained possession of property stolen earlier that month raises the inference that he possessed it with the requisite guilty knowledge. State v. Hatchett, 560 S.W.2d 627 (Tenn.1978). His possession need not be exclusive for this inference to arise. Brown v. State, 489 S.W.2d 855 (Tenn.Cr.App.1972). The jury obviously concluded that appellant knew the property was stolen despite the proof that he was suffering from a broken pelvis at the time of the offense. The evidence is sufficient to meet the requirements of T.R.A.P. 13(e). The court did not err in denying appellant’s motion for acquittal. This issue is overruled.

The second issue is whether the trial court erred by ruling pre-trial that appellant’s convictions for escape and assault with intent to commit second-degree murder could be used for impeachment purposes. In State v. Morgan, 541 S.W.2d 385 (Tenn.1976), our Supreme Court held that a witness may be impeached by evidence that he has been convicted of a crime if the crime (1) was a felony and the trial court determines that the probative value outweighs its prejudicial effect to the defendant, or (2) the crime involved dishonesty or false statement.

In the case sub judice, the trial court ruled before trial that the probative value of admitting proof of appellant’s felony convictions for assault with intent to commit second-degree murder and escape outweighed the prejudicial effect to the appellant. The court noted that while neither crime fell within the category of crimes involving dishonesty or false statement, the crime of escape did involve an intent to purposely violate the law and was thus probative of appellant’s credibility. The court also noted that neither offense was similar to the offense of concealing stolen property for which appellant was on trial. This is a significant consideration, since evidence of a prior conviction for the same type of crime for which a defendant is on trial may lead a jury to impermissibly infer that if he committed such an offense once, he probably committed it again. Where the prior offense is substantially different from the crime charged, the prejudicial effect is minimal. Long v. State, 607 S.W.2d 482, 486 (Tenn.Cr.App.1980). The trial court did not err in ruling that the prior felony convictions were admissible. This issue is overruled.

In the last issue, appellant challenges the trial court’s instruction to the jury on the inference of guilty knowledge to be drawn from appellant’s unexplained possession of stolen property. The charge was taken from Tennessee Pattern Jury Instructions: Criminal § 37.18. Appellant contends that the instruction was a comment on his failure to testify and therefore violated his Fifth Amendment Protection against self-incrimination. Such an attack was rejected by the United States Supreme Court in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). The instruction given in the present case was followed by this instruction:

“In considering whether possession of recently stolen property has been satisfactorily explained, you are reminded that in the exercise of constitutional rights the accused need not take the stand and testify.”

This issue overruled, the judgment of the trial court is affirmed.

WALKER, P.J., concurs. DAUGHTREY, J., filed a dissenting opinion.