LITTLE ROCK — A divided panel of nine state Court of Appeals judges has ruled that Robert Lee Thomas Jr. should not have been found guilty by a circuit court of theft by receiving, a charge related to a stolen firearm.
Last year, Thomas was tried in Saline County Circuit Court and sentenced to 360 months imprisonment for possessing a firearm and 120 months for “theft by receiving” after he was pulled over in a traffic stop, and an officer found a stolen firearm in his vehicle. The firearm was in plain view — sticking out from under the driving seat, police said — when the car was impounded.
In his appeal, Thomas argued that the evidence that he knew or should have known the firearm was stolen was insufficient, and that the charge should have been dismissed.
In the ruling released Wednesday, five of the judges agreed.
The appeals court has 12 judges who usually meet in four panels of three judges each. Rita Cunningham, chief staff attorney for the appeals court, said that when a panel cannot come to a unanimous decision, three more judges weigh in. If the six are split evenly, another group of three joins those considering the case.
In the year from July to June, there were only four cases in which nine judges were needed to render a decision, according to an unofficial tally maintained by the court. Cunningham said this is one of two cases this year to require that many judges.
In this case, the majority of the judges found that too much time had passed between the date the owner of the gun reported the theft and the date police found Thomas with the gun to assume that he knew or should have known it was stolen.
Under Arkansas Code Annotated 5-36-106, “The unexplained possession or control by the person of recently stolen property” will “give rise to a presumption that a person knows or believes that property was stolen.”
In the majority opinion, Judge Raymond Abramson wrote that the “recency” requirement is there to ensure that the person found with stolen property is aware that the property was stolen.
“The proper test of recency is whether the time lapse between the theft and the accused’s possession of the property is sufficiently short, given the circumstances of the case, to preclude the possibility of a transfer of the stolen property from the thief to an innocent party.”
The owner of the gun testified that it was taken from his home in May or June 2008, seven or eight months before Thomas’ arrest. Prosecutors presented no evidence to show how Thomas, who was a felon and could not legally own a gun, obtained it.
The law does not elaborate on what “recently stolen” means.
Abramson wrote that the court did not want to “draw a bright line” defining a time period, but in this case the court held that a little more than seven or eight months is too long to meet the statute’s requirements, and that, therefore, the charge of theft by receiving should be dismissed.
The appeals court upheld the circuit court’s decision to deny Thomas’ motion to suppress the gun as evidence.
Judges John Pittman, Robert Gladwin, John Robbins and Doug Martin agreed with the ruling.
In a dissent, Judge Waymond Brown wrote that the court was overstepping its bounds.
“In the absence of guidance from the Legislature, the court is engaging in an amorphous and arbitrary exercise, propping up the statute with temporal bookends and feeling its way around the edges of the law until, like Goldilocks in the fabled house of bears, it finds a formula that is ‘just right.’”
He wrote that the ruling implies that a theft-by-receiving conviction can be evaded if someone conceals stolen goods long enough.
Given that Thomas has a criminal record, could not legally obtain a gun, and was found intoxicated with white powder in his nostrils and in possession of a stolen gun, it is the “common-sense conclusion” that he knew or should have known it was stolen, Brown wrote.
In another dissent, Judge Rita Gruber wrote that Thomas was not an “innocent party,” and that his five previous felony convictions were relevant, and that seven or eight months was not too distant a time to find the firearm was recently stolen.
Judges Robin Wynne, Cliff Hoofman and Brown joined that dissent.
At the appeals court, the case is CACR 10-1130, Robert
Arkansas, Pages 25 on 10/30/2011