In 2005, Jason Cole arrived at his place of employment, Foot Gear in West Point, Mississippi, and discovered that the gate’s lock had been broken and the front door was ajar. Once inside, Cole found that most of the store’s athletic wear was missing from the racks along the wall and throughout the store; the phone line had been cut; and the store’s computer had been stolen. The amount of inventory stolen from Foot Gear was valued at approximately $109,614.
No fingerprints were recovered from the store, nor were there any leads related to the burglary until eight days later, when the police received an anonymous tip from a female caller. Detective Zate McGee, who investigated the burglary, testified that the anonymous caller told the police that Anthony Tucker had broken into Foot Gear on October 8th and he had hidden the merchandise that was stolen in a yellow shed and in a house located at 1893 Matthews Gin Road.
McGee testified that, following standard procedure, she checked to see if Tucker was in the police system. Her investigation revealed that Tucker was listed on the MDOC’s active offender’s list. As a convicted felon released on probation from the State of Wisconsin, Tucker was living in Mississippi via the Interstate Compact Agreement. Tucker had requested a transfer to Mississippi in order to live with his sister, Christann Gibbs.
Tucker’s parole officer in Mississippi was Mississippi Department of Corrections’ employee Johnny Hancock. After being contacted by the West Point Police, Hancock, accompanied by Officer McGee and Ryan Boykin, with the MDOC, went to investigate the residence described by the informant.
Upon their arrival, Hancock noticed Tucker walking from the house, which was located at 1893 Matthews Gin Road, toward a yellow storage shed that was located behind the house. Tucker’s sister, Christann; his brother-in-law, James Gibbs; and Erica Witherspoon, Tucker’s friend, were also outside the house when Hancock and the other officers arrived.
Hancock informed Tucker and the others that they were there to search for stolen merchandise, and initially, Gibbs gave his consent for a search of the house. A search warrant or consent was not needed to search the shed because that was supposed to be the residence of Tucker. As a condition of Tucker’s parole and interstate transfer of his supervision, Hancock was authorized to search Tucker’s residence, or investigate matters concerning Tucker, as he was under the control, or authority, of the MDOC.
At trial, there was testimony given that Tucker lived in the house rather than the shed, but evidence supported that someone had been living in the shed. The shed had a bed that appeared to have been slept in, a sofa, a coffee table, an ashtray, electrical service, and other signs of occupancy. Also, Tucker’s packed duffle bag was located in the shed.
Hancock testified that upon entering the shed, he observed numerous articles of new clothing and athletic shoes. Among other things, Hancock specifically remembered seeing a whole line of brand new white shoes lined up at the edge of the bed and numerous trash bags loaded with brand new clothing. Hancock testified that Tucker told him that the items were not stolen, that he got the items from two guys in a white van. However, at trial, through his attorney and his sister, Christann, Tucker claimed that the items were a gift from Gibbs.
By the time the police searched the shed, Christann, Gibbs, and Witherspoon had entered the house, locked the door, and would not let the officers enter. The officers determined that a search warrant was needed, so while McGee went to obtain a warrant, Hancock and Boykin remained at the residence and secured the area to ensure that no one left the house. Tucker had been handcuffed and placed in the back seat of the patrol car.
During this time, Hancock and the other officers noticed a burn pile in the back yard. Because it was evening, the officers used flashlights to discern what had been burned. In the ashes and remains of the burn pile, the officers observed and photographed pieces of clothing tags, wire that appeared to be from commercial-type clothes hangers, and small pieces of plastic that looked like melted plastic clothes-hanger clasps used by retail stores.
After obtaining a search warrant and upon entering the house, the officers found approximately 140 items of new athletic wear, jeans, caps, and athletic shoes of various sizes. Not only were there clothing and shoes strewn about the house, there were numerous garbage bags full of new clothes.
Christann testified that her husband often brought home multiple pairs of expensive athletic shoes and/or clothes for her and their five children, and that she had no reason to suspect that he had not purchased the items. However, she also testified that she and Gibbs were going through a divorce, in part, because he had pulled a gun on her, and she thought he brought so many expensive new clothes home to impress her or win her back. Tucker did not testify.
Tucker was convicted of possession of stolen property and sentenced to ten years. On appeal, he argued he was not in possession of the stolen items. MCOA affirmed.
A. Constructive Possession
Mississippi Code Annotated section 97-17-70(1) states:
A person commits the crime of receiving stolen property if he intentionally possesses, receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is possessed, received, retained or disposed of with intent to restore it to the owner.
Tucker argues that the State failed to meet its burden to prove that he constructively possessed stolen items because the State did not prove that he exercised dominion or control over the items. With regard to constructive possession, the MSC in Curry v. State, 249 So. 2d 414 (Miss. 1971), recognized that what constitutes a sufficient external relationship between the defendant and the property to complete the concept of possession is a question which is not susceptible of a specific rule. However, the following must be established:
There must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance or property and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the property or item involved was subject to his dominion or control. Proximity is usually an essential element, but by itself it is not adequate in the absence of other incriminating circumstances.
In other words, the State must show incriminating circumstances, in addition to proximity, in order to prove constructive possession. Tucker relies on the fact that he did not own the house or shed that he was living in, and he had only lived there a few days before the stolen athletic wear was discovered.
This argument is unavailing, as ownership of residential property or one’s length of stay is not outcome determinative in the legal sufficiency of evidence; it is simply a factor for consideration. Tucker previously had told Hancock, his parole officer, that he lived in the shed, and it was evident that someone had been occupying the shed. Also, Tucker’s packed duffle bag was located in the shed. The shed, as well as the house, contained numerous items that were shown to have been stolen from Foot Gear.
Although Christann testified that Tucker was occupying the living room of the house, she stated that Tucker did not have a key to the residence; she said that he could not come and go from the home at will. From the evidence presented, one could reasonably conclude that Tucker was primarily occupying the shed, but he had access to the home as well.
Even if Tucker were sleeping in the living room of the house, there were numerous stolen items in the living room and throughout the house in close proximity to Tucker, Christann, and Gibbs. In addition to the evidence of Tucker’s living arrangements, remains of charred clothing tags and burned retail-type clothes hangers were also located on the premises.
Additionally, the anonymous informant reported that Tucker had robbed Foot Gear and had hidden the stolen merchandise in the yellow shed and house located at 1892 Matthews Gin Road, where Tucker and the items were found. Most condemning, Hancock testified that Tucker told him that he had received the stolen items from two guys in a white van. This was in contradiction to Christann’s later testimony that her husband had given Tucker the items as a gift.
Considering the facts in the light most favorable to the prosecution, the record indicates that the State presented ample evidence of incriminating circumstances other than proximity to support a finding that Tucker intentionally possessed, received, retained, or disposed of stolen property knowing that it had been stolen or having reasonable grounds to believe it had been stolen. This issue is without merit.
B. Stolen Goods
Tucker correctly recognizes Thompson v. State, 457 So. 2d 953 (Miss. 1984), for the principle that mere possession without any indication of guilty knowledge is insufficient to uphold a conviction of receiving stolen goods.
In our case, a review of the record reveals that the circumstantial evidence presented weighed heavily against a reasonable hypothesis of innocence. The weight of the evidence established that a reasonable person could have concluded that Tucker knew or should have known that the items were stolen when “two guys in a white van” appeared to give away hundreds, and possibly thousands, of dollars’ worth of new athletic wear.
Other than Christann’s conflicting testimony, Tucker has presented no evidence that Hancock was inaccurate or dishonest in his account of Tucker’s admission. If the means by which Tucker said he had received the stolen items were not enough to deduce guilty knowledge, the removal and burning of the clothing tags and retail-type clothes hangers were also indicative of guilty knowledge. Contrary to Tucker’s assertion, there was more presented to the jury than hearsay testimony of an anonymous informant that Tucker was in possession of the stolen merchandise, and we hold that the verdict reached by the jury is consistent with the weight of the evidence presented by the State in the instant action. Accordingly, this issue is without merit.