Ronald Dennis Barnes, Appellant, v. United States of America, Appellee, 341 F.2d 189 (5th Cir. 1965)

This is an appeal from a judgment of conviction for violation of the Dyer Act, 18 U.S.C.A. § 2312.¹ 

The Government proved that on November 28, 1962, a 1962 Chevrolet Biscayne automobile was illegally taken from the house of Harold Kautz in Wayne, New Jersey.²  The automobile was later recovered at Jacksonville, Florida. The chief government witness, Clifford E. Cole, testified that on November 30, 1962, he observed defendants, Ronald D. Barnes and Roy E. Ames, Jr.,³  coming out of the laundry room at the Atlantic Gardens Apartments in Atlantic Beach, Florida. Upon entering the laundry room, Mr. Cole found that a candy machine had been broken open. He immediately proceeded to inform the manager of the apartments. Mr. Cole stated that, while he was talking to the manager, he noticed defendants Barnes and Ames "making a break" between the apartments toward a car that was parked nearby. Apparently, the door to the automobile was either jammed or locked, and while the defendants were struggling to get in, Cole parked his car broadside in front of the vehicle. The defendant and his companion then ran "for the woods." The Government established that the automobile which the defendants had attempted to enter was the same automobile that was taken from Mr. Kautz's possession in New Jersey, and that certain fingerprints taken from behind the rearview mirror were those of defendants Barnes and Ames.

Defendant Barnes, testifying in his own behalf, stated that he left his home in Connecticut with Ames and hitchhiked to Florida, obtaining five or six automobile rides en route, and that he could not recall any of the cars in which he had ridden during the trip. However, he asserted that both he and Ames had participated in driving some of the cars during the trip. One of their rides terminated in Jacksonville, but they later hitchhiked to Miami.

The primary issue for us to determine is whether the learned trial judge committed prejudicial error in his oral charge to the jury by neglecting to submit to them the issue of whether the defendant Barnes was in possession of the stolen automobile.⁴  To state the issue another way, did the trial court erroneously and prejudicially invade the province of the jury by presupposing that defendant Barnes had possession of the vehicle, considering the fact that the evidence of possession adduced at the trial was highly circumstantial?

It is well settled that the unexplained possession of the fruits of a crime soon after its commission justifies the inference that such possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight unless explained away by the circumstances or accounted for in some way consistent with innocence. Such was our holding in Herman v. United States, 289 F.2d 362, 367 (5 Cir. 1961). See also Wilson v. United States, 162 U.S. 613, 16 S. Ct. 895, 40 L. Ed. 1090 (1896); Barfield v. United States, 229 F.2d 936 (5 Cir. 1956); Battaglia v. United States, 205 F.2d 824 (4 Cir. 1953). The trial court correctly quoted our holding in Herman, but he failed to charge on the question of possession.

We are of the opinion that, under the facts and in the circumstances of this case the charge was erroneous; and that a careful instruction on the law of "possession" was necessary in order to protect the substantial rights of the defendant. In Barfield v. United States, supra, we concluded:

" [W]e think the Trial Judge must take great pains to make certain that the jury understands what is required to be possession as well as those factors which they must take into account to determine whether there can be a rational inference [of possession]."

The effect of the charge in the instant case was to shift the burden of proof to the defendant to overcome a prima facie inference of guilt from the fact of possession, when possession had not been clearly established by the evidence. There was no direct testimony that defendant Barnes ever had possession of the vehicle, but only circumstantial evidence from which the jury could draw the conclusion that the defendant had been in possession. The charge assumes that possession had been proved. The jury should have been permitted to decide that issue under proper instructions.⁵ 

In a criminal case based substantially upon circumstantial evidence as here, the court must assiduously adhere to the requirement that circumstantial evidence be sufficiently convincing to prove guilt, and that the surrounding circumstances must have such force and bearing as to justify the jury in finding that they were not only consistent with defendant's guilt, but inconsistent with his innocence. West v. United States, 311 F.2d 69 (5 Cir. 1962). In Herman there was no question of the sufficiency of the proof of the defendant's possession of the stolen jewelry. That issue was foreclosed by the evidence at the trial.

We are also confronted with the fact that no timely objection was made to the court's charge. According to Rule 30, F.R.Crim.P.,⁶  a party cannot assign as error any portion of the charge or any omission therefrom unless he objects as the rule provides. However, the error we have noted is a substantial one in our opinion. We believe the issue of possession is such a fundamental question in this case that the Plain Error Rule⁷  requires us to notice it.

In view of our conclusion, we do not reach the issue of the failure of the trial court to grant the motion for a judgment of acquittal.

Reversed and remanded for further proceedings not inconsistent with this opinion.