State v. Ketchum
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 93
HAN-95-589
Submitted on Briefs December 4, 1996
Decided May 5, 1997

Panel:		ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ. 
Majority:	GLASSMAN, CLIFFORD, RUDMAN and DANA, JJ.
Dissent:	ROBERTS, LIPEZ, JJ.

STATE OF MAINE

v.

THOMAS KETCHUM

CLIFFORD, J.

	[¶1]  Thomas Ketchum appeals from the judgment entered in the
Superior Court (Hancock County, Mead, J.) on a jury verdict finding him
guilty of theft by unauthorized taking (Class C){1} in violation of 17-A M.R.S.A.
§ 353 (1983).{2}  Because we agree with Ketchum's contention that the
evidence is insufficient to support the conviction, we vacate the judgment.
	[¶2]  The testimony at trial revealed the following facts: on July 28,
1994, William Haefele, operator of the Country Store in Trenton, reported
to the Hancock County Sheriff's Office that fifteen to eighteen Emmett Kelly
figurines had been stolen from his gift shop within the previous two days. 
On July 29, just after lunch, Haefele reported that eight additional figurines
had been stolen from his shop on that day.
	[¶3]  As the police were responding to Haefele's second complaint,
Lincoln Fenno, a registered dealer of Emmett Kelly figurines located in Bar
Harbor, called the sheriff's office at approximately 4:00 p.m.  Fenno
provided a description of a vehicle whose passengers had been acting
suspiciously in his store a few moments earlier.  At trial, Fenno identified
Ketchum as one of the individuals.  Fenno's description was placed over the
police dispatch and received by Sergeant Scott Kane.  After hearing the
description, Scott Kane searched for the vehicle and spotted it leaving Bar
Harbor at approximately 5:00 p.m.  Scott Kane followed the vehicle into a
supermarket parking lot and noticed three individuals in the vehicle later
identified as Michael Curtis, Wayne Paschal and Ketchum.  Scott Kane
testified that he questioned Ketchum, who was sitting in the front passenger
seat.  Ketchum stated that he had been in the Bar Harbor area with the other
two but that he had not done any shopping or been in any stores.  Another
officer who was on the scene then noticed the stolen objects in two brown
bags in the back of the vehicle and alerted Scott Kane.  When questioned
about the stolen figurines in the vehicle, Ketchum denied knowing anything
about the bags.  Ketchum stated that his companions had been in stores
shopping but that he did not know what they had purchased.
	[¶4]  As Scott Kane was questioning Ketchum, another officer,
Sergeant Patrick Kane, had approached the driver of the vehicle, Michael
Curtis, and had begun to question him.  Patrick Kane obtained consent from
Curtis to search the vehicle and located the eight Emmett Kelly figurines
missing from Haefele's store.  During the investigation, Scott Kane
questioned Tara Hart, a clerk at the Country Store, who recalled a suspicious
couple being in the store on Sunday, July 25.  She identified the couple as
Curtis and his girlfriend.
	[¶5]  Curtis also consented to a search of his home in Bangor. 
Ketchum rented a second floor bedroom from Curtis.  The search of Curtis's
residence produced eleven more Emmett Kelly figurines stolen from the
Country Store.  The figurines were located in the living room on the first
floor of Curtis's home.  Haefele testified that the value of the eight figurines
recovered was $736.60, and that the eleven figurines were worth over
$1,000.00.
	[¶6]  At the trial, Ketchum moved for a judgment of acquittal after the
State rested and after both parties finally rested.  The court denied both
motions.  Ketchum also objected to jury instructions regarding accomplice
liability and recent exclusive possession.  This appeal followed the jury
verdict finding Ketchum guilty of a Class C theft.

I

	[¶7]  Ketchum contends that the court erred in failing to grant his
motion for a judgment of acquittal.  He argues that there was no evidence
that he was guilty of theft by unauthorized taking as the principal or an
accomplice or that he was in exclusive possession of recently stolen
property.{3}  While he concedes that the figurines were stolen, Ketchum
argues that the only evidence linking him to those figurines is his presence 
in Curtis's vehicle on July 29, and that he and Curtis shared the same
residence.  When examining the sufficiency of the evidence, we review the
evidence in the light most favorable to the State to determine whether a
trier of fact rationally could find beyond a reasonable doubt every element of
the offense charged.  State v. Marden, 673 A.2d 1304, 1311 (Me. 1996).
	[¶8]  In defending the jury's verdict finding Ketchum guilty of theft,
the State contends that the evidence was sufficient to hold Ketchum
responsible for the theft as an accomplice, pursuant to 17-A M.R.S.A. § 57
(1983).
	[¶9]  17-A M.R.S.A. § 57 provides in part:

1.  A person may be guilty of a crime if it is committed by the
conduct of another person for which he is legally accountable as
provided in this section.

2.  A person is legally accountable for the conduct of another
person when:
	. . . .

C.  He is an accomplice of such other person in the
commission of the crime, as provided in subsection
3.

3.  A person is an accomplice of another person in the
commission of a crime if:

A.  With the intent of promoting or facilitating the
commission of the crime, he solicits such other
person to commit the crime, or aids or agrees or
attempts to aid such other person in planning or
committing the crime. . . .

17-A M.R.S.A. § 57 (1983).

	[¶10]  Ketchum's presence in a vehicle that contained some of the
stolen items is not sufficient evidence on which to hold Ketchum
responsible as an accomplice to theft.  See State v. Carter, 391 A.2d 344,
347 (Me. 1978) (mere presence as passenger in vehicle driven by robbery
suspect and containing instrumentalities of crime insufficient to sustain
verdict of defendant's guilt as accomplice to robbery).
	[¶11]  Viewing the evidence in this case in the light most favorable to
the prosecution, a trier of fact could not avoid having a reasonable doubt that
Ketchum was an accomplice to theft.  The testimony revealed that Ketchum
drove to Bar Harbor with Curtis and Paschal and was with them when the
eight stolen figurines were recovered.  The stolen figurines were found in
the back seat of Curtis's vehicle in which Ketchum was riding in the front
passenger seat.  There was no evidence that placed Ketchum at the scene of
the crime, the Country Store, or that he performed any role, such as a
lookout, see State v. Robert M., 588 A.2d 1202, 1202 (Me. 1991), nor was
there any evidence that he helped carry away the stolen items.  See State v.
Lee, 451 A.2d 313, 315 (Me. 1982).

II

	[¶12]  The State also contends that the jury verdict can be sustained
on the basis that Ketchum was in exclusive possession of the recently stolen
property which gives rise to the presumption set out in 17-A M.R.S.A. §
361(2) (1983), that Ketchum is guilty of theft.  That section provides in
part:

2.  Proof that the defendant was in exclusive possession of
property that had recently been taken under circumstances
constituting a violation of this chapter . . . shall give rise to a
presumption that the defendant is guilty of the theft . . . of the
property . . . .

To gain the benefit of the statutory presumption, where, as in this case,
there is no evidence of actual physical possession of the stolen goods by the
defendant, the State must produce evidence establishing that: (1) the
defendant constructively possessed the stolen goods; (2) the existence of
other possessive conduct on the part of the defendant in relation to the
stolen goods; and (3) the stolen goods were "recently taken."  State v.
DePhilippo, 628 A.2d 1057, 1060 (Me. 1993).{4}
	[¶13]  Constructive possession means that although one does not have
actual physical control of the goods he "has dominion and control over
them." Id. (quoting State v. Durgan, 467 A.2d 165, 167 (Me. 1983)).  The
evidence pertaining to Ketchum's constructive possession of the stolen
property is insufficient.  Ketchum's mere presence in Curtis's vehicle,
where some of the stolen items were found, is insufficient evidence to
establish Ketchum's constructive possession of those items.  In State v. Dall,
305 A.2d 270 (Me. 1973), stolen property was found in a bag partially under
the seat in the vehicle that defendant was occupying.  Even though the
defendant was seen bending forward in that seat just prior to the vehicle
being stopped, we concluded that there was insufficient evidence to prove
possession of the stolen items beyond a reasonable doubt.  Id. at 272.  We
stated "[t]here are simply too many rational hypotheses explanatory of such a
sudden movement which are consistent with a lack of control or possession
of the stolen property."  Id.; see also State v. Moser, 270 A.2d 451 (Me.
1970).  In this case, Ketchum was present in the vehicle but was not
occupying the seat where the figurines were found and there was no
evidence of any furtive, suspicious movement on his part at or just prior to
the time of the stop.
	[¶14]  The discovery of eleven figurines in the living room on the first
floor of Curtis's home where Ketchum was a tenant is likewise insufficient
on which to base a finding of constructive possession.  The room rented by
Ketchum was on the second floor.  The only evidence offered on Ketchum's
use of the premises was that his possessions were located solely in the
bedroom that he rented on the second floor.  This case differs from State v.
DePhilippo, 628 A.2d 1057, 1060 (Me. 1993), and State v. Robinson, 561
A.2d 492, 495 (Me. 1989), where stolen goods found at a location owned
solely by the defendant supported a finding of guilt premised on
constructive possession.
	The judgment is:
						Judgment vacated.  Remanded for entry
						of judgment of acquittal.

LIPEZ, J., with whom ROBERTS, J. joins, dissenting.

	[¶15]  I respectfully dissent because the evidence is sufficient to
support Ketchum's conviction.  Moreover, the Court's opinion reveals the
need for clarifying the requirements the State must meet to gain the benefit
of the statutory presumption set forth in 17-A M.R.S.A. § 361(2) (1983).{5}    

I

	[¶16]  On July 29, 1994, eight Emmett Kelly figurines were stolen
from the Country Store operated by William Haefele.  Late that afternoon, the
stolen figurines were recovered from Michael Curtis's car in which Ketchum
and Wayne Paschal were passengers.  The jury could find that all three
occupants of the car were in possession of the recently stolen figurines,
provided there were additional circumstances indicative of guilt.  Through
the testimony of Lincoln Fenno, a registered dealer of the figurines, the jury
learned that Ketchum and Paschal had been in Fenno's store that afternoon. 
They were acting so suspiciously that Fenno followed them, noted the
description and registration number of their car, and immediately called the
sheriff's office.  That call led to the interception of the vehicle by Sergeant
Scott Kane.  When questioned by Officer Kane, Ketchum admitted that he
had been riding around Bar Harbor with Curtis and Paschal.  Ketchum
denied, however, that he had been in any stores while he was in Bar Harbor. 
	[¶17]  Ketchum's false claim that he had not been in any stores
indicated a consciousness of guilt.  That guilty state of mind, coupled with
his suspicious behavior in Fenno's store, supplied the added circumstances
sufficient to support the jury's guilty verdict.  See State v. Austin, 518 A.2d
1042, 1045-46 (Me. 1986) (proof of mere presence in vehicle containing
stolen goods, coupled with evidence of suspicious activities prior to
commission of the offense, is sufficient to sustain conviction for burglary and
theft).  The Court errs if it is requiring that the evidence of the defendant's
constructive possession of the stolen goods found in the vehicle be
contemporaneous with his presence in the vehicle.  Such evidence can
involve proof of conduct earlier or later in time.  I would therefore affirm the
conviction.

II

	[¶18]  Although the Court emphasizes the insufficient proof pertaining
to Ketchum's constructive possession of the stolen property, it quotes State
v. DePhilippo, 628 A.2d 1057, 1060 (Me. 1993), for the proposition that to
gain the benefit of the statutory presumption relating to the exclusive
possession of recently stolen property, in the absence of evidence of actual
physical possession of the stolen goods by the defendant, the State must
produce evidence establishing:  (1) that the defendant constructively
possessed the stolen goods; (2) the existence of other possessive conduct on
the part of the defendant in relation to the stolen goods; and (3) that the
stolen goods were "recently taken."  In this case there is no evidence of
"other possessive conduct on the part of the defendant in relation to the
stolen goods."  Id. (quoting State v. Durgan, 467 A.2d 165, 168 (Me. 1983)). 
If this element of proof was, in fact, necessary to gain the benefit of the
statutory presumption, I would agree with the court that there was
insufficient evidence of Ketchum's guilt.  In my view, however, the "other
possessive conduct" requirement is an anomaly of Maine law that imposes a
needless duplication of the constructive possession requirement.      
	[¶19]  The law generally recognizes two kinds of possession, actual
and constructive.{6}  DePhilippo, 628 A.2d at 1060.  A defendant who has
actual physical custody of the stolen goods is in actual possession of them. 
Id.  "Constructive possession means that although one does not have actual
physical custody of the goods, [the defendant] has dominion, authority or
control over them."  Id. (quotation omitted).  Maine's common law rule
permitting an inference that the person in recent possession of stolen goods
committed the theft or burglary dates to the 19th century.  See State v.
Saba, 139 Me. 153 (1942) (citing State v. Merrick, 19 Me. 398, 400-01
(1841); State v. Russo, 127 Me. 313, 314-15 (1928)); see also 17-A M.R.S.A.
§ 361(2), Comment--1975 ("Subsection 2 contains a rule that is already law
in Maine."); P.L. 1975, ch. 499, § 361.  However, the first reference to
evidence of other "possessive conduct" as a prerequisite for the inference
when there is only constructive possession occurred in State v. Barrett, 256
A.2d 666, 669 (1969).  In Barrett we declared that "[t]he jury under
appropriate instructions might have found that the accused was in
constructive possession of the shed and its contents [the stolen goods], but
such possession alone is insufficient to raise the reference presumption"
(emphases added).  We went on, however, to articulate the necessary
additional proof in terms of the standard definition of constructive
possession: 
   
 If the presumption is supported it must rest on the possessive
conduct of Barrett in helping Wiley transport the set for purposes of
sale.  This conduct in the light of all the surrounding circumstances
could be found to be an exercise of dominion, control, and right of
disposal jointly with Wiley, or with Smith, or with both, soon after the
larceny and amounts to the possession upon which a reasonable
presumption of guilt can be founded. . . . The reasonability of this
presumption leading to a justifiable conviction for larceny is
significantly bolstered by the testimony, pointing directly to the
felonious act, that contrary to the alibi evidence, Barrett was with
Wiley 'uptown' at the time of the larceny.

256 A.2d at 669 (emphases added).  We never explained in Barrett why this
additional evidence of the defendant's dominion and control over the stolen
item was not simply further evidence of the defendant's constructive
possession of the item.  In fact, it was further evidence of constructive
possession.  It should not be a discrete element of proof.  
 	[¶20]  Nonetheless, in subsequent cases we referred to "possessive
conduct" as an additional element of proof the State must provide to gain
the benefit of the statutory presumption, and continued to do so even when
application of the requirement revealed its redundancy.  In State v. King, for
example, we asserted that "[w]here constructive possession is shown . . .
exclusive possession may be found if the evidence shows some other
'possessive conduct' on the part of the defendant," and held that the jury's
finding of constructive possession was justified in part because of evidence
that the defendant had invited a friend to look at the goods in the basement
of an apartment to which he had unlimited access.  379 A.2d 131, 134 (Me.
1977) (emphasis added).  We then went on to explain that "[the
defendant's] possessive conduct or his exercise of dominion and control, is
amply demonstrated by his acts of inviting people to the cellar to see the
tools and by the presence of his fingerprint on one of the tools."  Id. at 134-
35 (emphases added).  That is, we not only defined "other possessive
conduct" in terms of what constitutes constructive possession, but we found
the supposedly separate requirement to have been met by virtue of the same
evidence used to prove constructive possession.
  	[¶21]  We should stop perpetuating this redundancy.  Constructive
possession requires proof that the defendant has the ability to exercise
dominion or control over the items at issue.  Proof of possessive acts relating
to those items--acts that go beyond mere presence--is one way to establish
such dominion or control, and hence prove constructive possession.  To
require proof of other possessive acts independent of and in addition to the
constructive possession requirement makes no sense. 
                                                               
Attorneys for State:

Michael E. Povich, District Attorney
Dennis E. Smith, Asst. Dist. Atty.
60 State Street
P O Box 722
Ellsworth, ME 04605

Attorney for defendant:

Rosemarie Giosia, Esq.
104 Main Street, Suite A
Ellsworth, ME 04605

FOOTNOTES******************************** {1} At the time of the alleged offense, 17-A M.R.S.A. § 362 (1983) provided in part: 3. Theft is a Class C crime if: A. The value of the property or services is more than $1,000 but not more than $5,000. {2} 17-A M.R.S.A. § 353 (1983) provides: 1. A person is guilty of theft if be obtains or exercises unauthorized control over the property of another with intent to deprive him thereof. 2. As used in this section, "exercises unauthorized control" includes but is not limited to conduct heretofore defined or known as common law larceny by trespassory taking, larceny by conversion, larceny by bailee and embezzlement. {3} Because we conclude that the court should have granted Ketchum's motion for a judgment of acquittal we have no need to separately address Ketchum's contention concerning the jury instructions. {4} The State has not advanced a different construction of 17-A M.R.S.A. § 361(2) than that set forth in State v. DePhilippo, 628 A.2d at 1060. {5} The statute states in relevant part: 2. Proof that the defendant was in exclusive possession of property that had recently been taken under circumstances constituting a violation of this chapter . . . shall give rise to a presumption that the defendant is guilty of the theft or robbery of the property, as the case may be, . . . . 17-A M.R.S.A. § 361. The "presumption" referred to in the statute must be read as a "permissible inference." State v. Hillman, 565 A.2d 1012, 1013 n.1 (Me. 1989) (explaining relation to M.R. Evid. 303(c)); State v. King, 379 A.2d 131, 133-34 (Me. 1977) (juries must be instructed in terms of "permissible inference" rather than "presumption"). {6} Both actual and constructive possession may be sole or joint, State v. Bachelder, 403 A.2d 754, 761 (Me. 1979). "Exclusive possession" would seem to be inconsistent with joint possession, but our case law suggests that in this context the word "exclusive" is intended to signify dominion and control rather than exclusivity per se. As the Court explained in Bachelder, Notwithstanding the fact that the term "exclusive" possession might, in ordinary usage, imply that a defendant must be in "sole" possession of recently stolen property in order for the permissible inference to come into play, this Court has held that joint possession of stolen property by two or more persons may be deemed the exclusive possession of any one of them where there is evidence that the defendant "acted in concert" with the other person or persons in possession of the property as a "participant in the crime." The inference of guilt may be drawn if the jury finds that the defendant made a "conscious assertion of possession," or that the recently stolen goods were found in a location where they were placed "'by the act of the party [defendant] or [with] his undoubted concurrence.'" 403 A.2d at 761 (citations omitted); see also State v. Mosher, 270 A.2d 451, 454 (Me. 1970) (noting that State v. Barrett, 256 A.2d at 668, stands for the proposition that joint possession may be exclusive where defendant's participation with others in the physical transportation of a stolen item and negotiation of its sale soon after the larceny constituted a joint "exercise of dominion, control and right of disposal" on which the statutory inference could be founded).