Tucker v. State
| Docket Number: | 2008-KA-00762-COA Linked Case(s): 2008-KA-00762-COA ; 2008-CT-00762-SCT ; 2008-CT-00762-SCT |
|
| Court of Appeals: |
Opinion Link Opinion Date: 11-24-2009 Opinion Author: ROBERTS, J. Holding: AFFIRMED |
|
| Additional Case Information: |
Topic: Possession of stolen property - Sufficiency of evidence - Theory of case - Sufficiency of indictment - Jury instructions - Closing argument - Ineffective assistance of counsel Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
|
| Trial Court: |
Date of Trial Judgment: 11-20-2007 Appealed from: Clay County Circuit Court Judge: Lee J. Howard Disposition: CONVICTED OF POSSESSION OF STOLEN PROPERTY AND SENTENCED AS A HABITUAL OFFENDER TO TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, OR EARLY RELEASE, AND TO PAY A FINE OF $10,000 UPON RELEASE FROM CONFINEMENT District Attorney: Forrest Allgood Case Number: 8886 |
|
| Note: | This opinion was later reversed and rendered by the Supreme Court of Mississippi on 11/4/2010. See the SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO65575.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ANTHONY LEE TUCKER |
LESLIE S. LEE |
|
|
| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Possession of stolen property - Sufficiency of evidence - Theory of case - Sufficiency of indictment - Jury instructions - Closing argument - Ineffective assistance of counsel |
| Summary of the Facts: | Anthony Tucker was convicted of possession of stolen property with a value of over $500. He was sentenced as a habitual offender to ten years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Tucker argues that there was clearly insufficient evidence that Tucker constructively possessed any of the items alleged to be stolen or that Tucker knew or should have known that the items were stolen. 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. From the evidence presented, one could reasonably conclude that Tucker was primarily occupying the shed, but he had access to the home as well. 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 where Tucker and the items were found. 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. Issue 2: Theory of case Tucker argues that where a defendant is charged with receiving stolen goods and the evidence shows that he is guilty of the larceny of the goods in question, he cannot be convicted of possession of stolen property. It was made clear to the jury, through the trial judge’s statements, that Tucker was on trial for possession of stolen goods, not burglary. Furthermore, testimony was given that the police had recovered no fingerprints or leads about the burglary until the anonymous informant contacted the police. Although the aftermath of the burglary and some surrounding events were described, the record reflects that the State presented a case against Tucker for possession of stolen property, for which he was charged. Issue 3: Sufficiency of indictment Tucker argues that the indictment clearly had a substantive defect in failing to sufficiently identify the stolen property he was alleged to constructively possess. The purpose of an indictment is to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense. Tucker was indicted for receiving or possessing athletic wear, which was stolen from Foot Gear and exceeded a value of over $500, and that is exactly what he was convicted of. It is of no instance that the indictment did not list each individual cap, sweatshirt, pair of tennis shoes, etc. The indictment was sufficient to inform Tucker as to the charges he was facing such that he had a fair opportunity to prepare a defense. Issue 4: Jury instructions Tucker argues that he was refused an instruction that allowed him the opportunity to present his theory of the case. In addition, Tucker argues that the instructions received by the jury were hopelessly confusing and conflicting. The jury instructions accurately reflected the law and clearly informed the jury, and when read as a whole, the instructions were not conflicting or confusing. Issue 5: Closing argument During its closing argument, counsel for the State speculated that Foot Gear had been burglarized by more than one individual, using the term “they” several times. The State also referred to the burglary as an “ex-con” job. Tucker argues that the court should have sustained defense counsel's objections to these statements. It was reasonable for the State to theorize about how the items were stolen and present that theory in an effort to refute Tucker’s claimed ignorance. The nature of the burglary and the experience of those who committed it were inferable from the evidence presented. Furthermore, the statements did not result in unjust prejudice to Tucker given that the trial judge distinctly stated that Tucker was not on trial for burglary. Issue 6: Ineffective assistance of counsel Tucker argues that his trial counsel was deficient and committed numerous errors throughout the trial. The record does not affirmatively show ineffectiveness of constitutional dimensions, and the parties have not stipulated that the record is adequate such that the Court can adequately weigh the trial judge’s findings of fact. Tucker can raise his ineffective-assistance-ofcounsel claim through appropriate post-conviction-proceedings. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
