ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Matthew Jon McGovern Gregory F. Zoeller

Evansville, Indiana Attorney General of Indiana

Nicole M. Schuster

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 82S04-0811-CR-592

KAIL FORTSON,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

_________________________________

Appeal from the Vanderburgh Circuit Court, No. 82C01-0703-FD-303

The Honorable Carl A. Heldt, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 82A04-0801-CR-16

_________________________________

January 21, 2010

Rucker, Justice.
2

Defendant was spotted driving a stolen pick-up truck within a few hours after the owner 

reported it missing. After being stopped by police officers, the defendant was belligerent and 

uncooperative insisting he did not steal the truck. Defendant was convicted of receiving stolen 

property and on appeal argued the evidence was not sufficient to sustain the conviction. A 

divided panel of the Court of Appeals agreed and reversed Defendant‟s conviction. Among 

other things the court reasoned that although the unexplained possession of recently stolen 

property standing alone may be sufficient to support a conviction for theft, it is not sufficient to 

support a conviction for receiving stolen property. 

Facts and Procedural History

Around 4:30 p.m. on March 13, 2007, Nathan Sosh parked his 1993 Chevy S-10 pick-up 

truck in the parking lot of a Big Lots store in Evansville, Indiana. Accidently leaving his keys in 

the ignition Sosh went inside. When he exited the store thirty to forty-five minutes later his truck 

was gone. Sosh called his wife from a nearby pay phone; she picked him up; and after the 

couple returned home Sosh called the police. Giving the police a description of the vehicle and 

the license plate number Sosh reported the truck missing. Around midnight he received a call 

that the truck had been recovered. In the meantime, at around 11:20 p.m. Officer Jeremy 

Matthews of the Evansville Police Department was on routine patrol when he saw a vehicle 

matching the description of Sosh‟s missing truck exit the parking lot of a motel located 

approximately two miles from Big Lots. Officer Matthews followed the truck for about four 

blocks until it pulled into the parking lot of another motel and came to a stop. At that point 

Officer Matthews pulled behind the truck and activated his emergency lights. By that time other 

units had arrived on the scene. Officer Matthews identified Fortson as the driver and noted there 

was also a passenger in the vehicle. The police ordered the pair out of the truck and placed 

Fortson in handcuffs. The passenger was released without questioning. When Fortson asked 

why he was being arrested, Officer Matthews told him that “he was in a stolen vehicle, and he 

was being arrested for Auto Theft. . . .” Tr. at 41. Officer Matthews testified that Fortson “was 

fairly irate once he was explained he was being arrested” complaining that “it was a racially 

motivated stop, and just becoming more and more irate with me.” Id. According to Officer 

Matthews “once [Fortson] was in custody, he was very belligerent, wasn‟t very cooperative at all 

to the point that I didn‟t even continue any further questioning.” Tr. at 42. Also, according to 
3

Officer Matthews, Fortson “did imply that he did not steal the truck.” (emphasis added). Id. 

Another officer on the scene, Officer Nicholas Henderson, was more explicit: “I do believe he 

yelled that he didn‟t steal it . . . it was loaned to him, it was given to him to use . . . I don‟t 

remember the exact words he used.” Tr. at 56. However, the officers did not ask Fortson who 

loaned the truck to him. 

The State charged Fortson with receiving stolen property, a Class D felony. And the case 

proceeded to trial by jury on November 2, 2007. Failing to appear, Fortson was tried in 

absentia.1 Sosh testified that he did not know Fortson and did not give him permission to drive 

Sosh‟s truck. He also testified that although the truck was not damaged in any way, when he 

retrieved it there were a number of empty beer cans and an empty liquor bottle in the bed of the 

truck that did not belong to him.2 

The jury returned a verdict of guilty as charged. At the December 6, 2007 sentencing 

hearing the trial court sentenced Fortson to a term of eighteen months in the Department of 

Correction. Fortson appealed challenging the sufficiency of the evidence and argued the State 

failed to show that he “knew that the pickup truck he was driving was stolen.” Br. of Appellant 

at 5. A divided panel of the Court of Appeals agreed and reversed the judgment of the trial court 

in an unpublished memorandum decision. Fortson v. State, No. 82A04-0801-CR-16 (August 29, 

2008). In doing so the court observed: 

[H]ad the State charged Fortson with theft we would be faced with 

an anomalous result where the mere unexplained possession of 

recently stolen property is sufficient to support an inference of 

theft of that property. The J.B. court [J.B. v. State, 748 N.E.2d 914 

(Ind. Ct. App. 2001)] stated, and we agree, that until our Supreme 

Court instructs otherwise, the unexplained possession of recently 

stolen property may be sufficient to support a conviction for theft; 

however if the State charges receiving stolen property, the 

unexplained possession of recently stolen property must be 

accompanied with additional circumstances supporting an 

 

1

Fortson later asserted that he was mistaken about his trial date, believing it was scheduled for November 

12 rather than November 2. Tr. at 90. After apparently learning that a warrant had been issued for his 

arrest for failing to appear at trial, Fortson contended, “I turned myself into the jail right away.” 

Appellant‟s App. at 34. 

2 According to Officer Matthews, Fortson did not appear to be intoxicated and he was not driving the 

truck erratically. Tr. at 47-48. 
4

inference that the accused knew the property was stolen. We agree 

with J.B. that the disparate application of this inference may well 

lead to anomalous results and join with them in urging our 

Supreme Court to clarify this anomaly.

Fortson, slip op. at 6 n.3 (internal citations and quotations omitted). Having previously granted 

transfer we now address the anomaly the Court of Appeals has identified. In all other respects 

we summarily affirm its opinion. 

Discussion

The statute defining the crime of Receiving Stolen Property provides: “A person who 

knowingly or intentionally receives, retains, or disposes of the property of another person that 

has been the subject of theft commits receiving stolen property, a Class D felony . . . .” Ind. 

Code § 35-43-4-2(b). In addition to proving the explicit elements of the crime, the State must 

also prove beyond a reasonable doubt that the person knew that the property was stolen. Gibson 

v. State, 643 N.E.2d 885, 887 (Ind. 1994); Ind. Code § 35-41-2-2(d) (“Unless the statute defining 

the offense provides otherwise, if a kind of culpability is required for commission of an offense, 

it is required with respect to every material element of the prohibited conduct.”). And 

knowledge that property is stolen may be inferred from the circumstances surrounding the 

possession. Stone v. State, 555 N.E.2d 475, 477 (Ind. 1990); Marshall v. State, 505 N.E.2d 853, 

856 (Ind. Ct. App. 1987). However it has long been the accepted law in this state that the 

“surrounding circumstances” must include something more than the mere unexplained 

possession of recently stolen property. Instead the “mere possession” rule has been reserved for 

the charge of the theft. As this Court observed almost a century ago, “[t]he rule that the 

possession of stolen property, the proceeds of a larceny, soon after the commission of the 

offense, unless explained, is prima facie evidence of the guilt of the person in whose possession 

the property is found, does not apply to the offense of receiving stolen property.” Bowers v. 

State, 196 Ind. 4, 146 N.E. 818, 820 (1925); see also Wertheimer v. State, 201 Ind. 572, 169 N.E. 

40, 44 n.1 (1929) (“Where, as in the case at bar, there is no evidence to show that the theft was 

committed by some person other than the defendant charged with receiving the goods, such 

possession of goods recently stolen raises a presumption of theft, rather than of receiving stolen 

goods, and is not prima facie evidence that the possessor is guilty of receiving stolen goods.”). 
5

A number of jurisdictions adhere to some variant of the mere possession rule.3 Not only 

does the rule have a rather ancient pedigree, but also as variously stated the rule‟s underlying 

rationale has been explained as follows: 

Proof of the possession of stolen property is, of course, competent 

and essential to substantiate the charge [of receiving stolen 

property]; but the naked possession without proof that the 

defendant received the goods knowing they had been stolen will 

not sustain the charge. The very essence of the offense is the 

receiving knowing them to have been stolen. If the presumption is 

to be indulged that every person found in [the] possession of stolen 

goods knows them to be stolen, the state would be relieved of 

establishing the guilty knowledge, and the burden thrown on the 

defendant of establishing his innocence.

State v. Richmond, 186 Mo. 71, 84 S.W. 880, 882-83 (1904); see also Adkins v. State, 532 

N.E.2d 6, 8 (Ind. 1989) (“Circumstantial evidence may establish the defendant‟s knowledge that 

the property is stolen, the gravamen of the offense. But such knowledge cannot be inferred 

solely from the unexplained possession of recently stolen property.” (citations omitted); 

Mattingly v. State, 421 N.E.2d 18, 19 (Ind. Ct. App. 1981) (“[I]t is equally clear that knowledge 

of the stolen character of property may not be inferred solely from the unexplained possession of 

recently stolen property. In fact, it has been specifically held that the rule which permits 

inference of guilt of theft from unexplained possession of recently stolen property does not apply 

 

3

See, e.g., People v. Anderson, 210 Cal. App. 3d 414, 426 (Cal. Ct. App. 1989) (“[W]hile possession of 

recently stolen property (standing alone) is not enough to support a conviction, possession of recently 

stolen property is so incriminating that a jury is entitled to infer guilty knowledge and find guilt if there is 

even slight corroborating evidence tending to show guilty knowledge.”) (alterations in original) (citation 

omitted); State v. Anonymous, 463 A.2d 533, 538 (Conn. 1983) (In a receiving stolen property case the 

court held that “[m]ere possession of property which has been burglarized is not a sufficient basis for 

inferring the requisite knowledge of the stolen character of the property.”) (citations omitted); Bronson v. 

State, 926 So. 2d 480, 483-84 (Fla. Dist. Ct. App. 2006) (“Mere possession of stolen property, without 

other evidence of guilt, is not to be regarded as prima facie evidence of larceny, robbery, [or] receiving 

stolen property. . . .”) (citation omitted) (emphasis in original); State v. Trowbridge, 540 P.2d 278, 281 

(Idaho 1975) (“Scienter is necessary for conviction of receiving stolen property [and] [t]he mere 

possession of recently stolen property cannot give rise to a legal presumption of „guilty‟ knowledge or 

belief . . . .”) (footnote omitted); State v. Lewis, 885 So. 2d 641, 647 (La. Ct. App. 2004) (“Mere 

possession of stolen property does not create a presumption that the person in possession of the property 

received it with the knowledge that it was stolen . . . .”) (citation omitted); Commonwealth v. Parker, 847 

A.2d 745, 751 (Pa. Super. Ct. 2004) (“[T]he mere possession of stolen property is insufficient to prove 

guilty knowledge, and the Commonwealth must introduce other evidence . . . that demonstrates that the 

defendant knew or had reason to believe that the property was stolen.”) (citation omitted); Taylor v. State, 

17 P.3d 715, 720 (Wyo. 2001) (citing Russell v. State, 583 P.2d 690, 698 (Wyo. 1978)) (“[N]aked 

possession of stolen property alone is insufficient to prove knowledge . . . .”).
6

in receiving stolen property cases.”) (citations omitted); accord State v. Adams, 133 N.C. 667, 45 

S.E. 553, 554 (1903) (In a receiving stolen property case the court reasoned that “[I]f one awoke 

in the morning, finding a stolen horse in his stable, and it being shown that some other person put 

it there, the law would raise no presumption that it was done with the knowledge of the owner of 

the stable.”). 

But what is the origin of the notion that for a charge of theft, mere possession is enough 

to infer that the person in possession is the thief? This too has antiquated roots apparently 

arising under the English common law. One of the earliest reported decisions setting forth the 

underlying rationale for this rule explained it as follows:

As a general proposition where a person is in possession of 

property, it is reasonable, to suppose that he is able to give an 

account of how he came by it; and where the property in question 

has belonged to another, it is in general not unreasonable to call 

upon him to do so . . . . If, then, it be reasonable, under such 

circumstances, to call upon the party in possession to account for 

such possession, it cannot be unreasonable to presume against the 

lawfulness of that possession, when he is unwilling to give an 

account, or is unable to give a probable reason why he cannot. 

Now, there is no reason in general why an honest person should be 

unwilling; and, therefore, the law presumes that such a person is 

not honest, and that he is the thief.

Cockin‟s Case, (1836) 168 Eng. Rep. 1139 n.1. As one writer notes: “By the early decades of 

the nineteenth century, a body of law had developed in both England and America that limited 

the evidentiary uses of a defendant‟s unexplained possession of stolen goods. Although 

articulated in various ways, the basic legal rule held that the burden of proof could be transferred 

from the prosecutor to the defendant only if the prosecutor first showed that the defendant had 

„exclusive and unexplained possession of stolen property recently after the theft.‟” Bruce P. 

Smith, The Presumption of Guilt and the English Law of Theft, 1750-1850. 23 Law & Hist. 

Rev. 133, 146 (2005). 

As might be expected, in the context of a theft prosecution, jurisdictions differ over the 

import of a defendant‟s unexplained possession of recently stolen property. For example in 

some jurisdictions it is said to represent “prima facie evidence of guilt.” See e.g., United States 

v. Lefkowitz, 284 F.2d 310, 313 (2d Cir. 1960); Lane v. State, 702 S.W.2d 806, 807 (Ark. 1986); 
7

People v. Greco, 790 N.E.2d 846, 854 (Ill. 2003); Riley v. Commonwealth, 91 S.W.3d 560, 563 

(Ky. 2002). In other jurisdictions the “mere possession” rule – sometimes referred to as the 

“unexplained possession” rule – is characterized as raising a “presumption” that the person in 

possession is the thief. See e.g., Williamson v. State, 281 S.E.2d 512, 514 (Ga. 1981); State v. 

Ward, 427 P.2d 586, 587 (Kan. 1967); State v. Barnes, 481 S.E.2d 44, 75-76 (N.C. 1997). And 

other states, as with this state‟s current view, adhere to the proposition that possession of recently 

stolen property may provide “an inference the possessor either was the thief or knew the property 

was stolen.” Short v. State, 443 N.E.2d 298, 306 (Ind. 1982); accord Miller v. State, 563 N.E.2d 

578, 581 (Ind. 1990); J.B. v. State, 748 N.E.2d 914, 916 (Ind. Ct. App. 2001); see also Grant v.

State, 569 A.2d 1237, 1241 (Md. 1990); Rollerson v. State, 196 S.W.3d 818, 822 (Tex. Ct. App. 

2006); Smith v. Commonwealth, 439 S.E.2d 409, 410 (Va. 1994); Tageant v. State, 673 P.2d 

651, 654 (Wyo. 1983). Indeed in Barnes v. United States, 412 U.S. 837 (1973) the United States 

Supreme Court noted that “[f]or centuries courts have instructed juries that an inference of guilty 

knowledge may be drawn from the fact of unexplained possession of stolen goods.” Id. at 843. 

But Indiana has not always followed this course. Prior to 1970, the law on unexplained 

possession was relatively settled. It can be said that the rule was: the exclusive, unexplained 

possession of recently stolen property is a circumstance from which the fact-finder may draw an 

inference of guilt. It was a fact to consider along with all the other facts and circumstances 

tending to show a defendant‟s guilt. See, e.g., Lawrence v. State, 244 Ind. 305, 192 N.E.2d 629, 

632 (1963) (in a larceny case, “[t]he rule is that unexplained, exclusive possession of recently 

stolen property constitutes a circumstance from which a court or jury may draw an inference of 

guilt.); Gilley v. State, 227 Ind. 701, 88 N.E.2d 759, 761 (1949); McAdams v. State, 226 Ind. 

403, 81 N.E.2d 671, 674-75 (1948) (in a second degree burglary case, the Court noted that “[i]t is 

true that unexplained, exclusive possession of stolen property soon after it was stolen ordinarily 

constitutes a circumstance from which the trier of the facts may draw an inference of guilt[,] but 

it is merely a circumstance for the jury to consider along with all the other facts and 

circumstances of the case.”) (citations omitted). 

At the time, the foregoing articulation of the rule placed Indiana in the mainstream of 

most jurisdictions. See generally 50 Am. Jur. 2d Larceny § 160 (1970) (citing cases) (“The true 

rule is, without doubt, that the possession of the property by the defendant soon after the 
8

commission of the alleged crime is merely an evidentiary fact tending to establish guilt which 

should be submitted to the jury, to be considered in connection with all the other facts and 

circumstances disclosed by the evidence.”). Moreover, “[p]ossession of property alone, 

unsupported by other facts indicative of guilt, is not prima facie evidence that the person in 

possession thereof committed a larceny.” Id.

However this Court‟s jurisprudence took a noticeable turn beginning in 1970 when the 

Court decided Bolton v. State, 254 Ind. 648, 261 N.E.2d 841 (1970). Bolton involved two 

defendants who were convicted of theft after a bench trial. Specifically the defendants were 

accused of stealing a tractor with a snow plow from a residential garage. On appeal, both 

defendants challenged the sufficiency of the evidence supporting their convictions contending 

that the “mere possession of stolen goods will not give grounds in itself for conviction for theft, 

but must be coupled with other evidence showing that [they] did in fact commit the theft.” Id. at 

842. The Court affirmed the convictions holding as follows:

[T]he State had made its prima facie case before the trial court 

when it presented evidence of exclusive possession in the 

appellants shortly after the theft of the tractor. The weight of this 

evidence was to be determined by the trier of fact and not by this 

Court. At the point in the trial when the state had made its prima 

facie case, if the appellants had evidence which would have 

explained their possession, it was their privilege to present the 

same. In the absence of such explanation, the trier of fact was 

entitled to believe the evidence presented by the State in making its 

prima facie case.

Id. at 843.

Since Bolton our courts have adhered to some variation of the rule that the unexplained 

possession of recently stolen property standing alone is sufficient to sustain a verdict of guilty of

theft. At the end of the day, regardless of its characterization, the underlying thrust of the “mere 

possession” rule is apparently anchored in its English common law roots, namely: “there is no 

reason in general why an honest person should be unwilling [to account for the stolen goods in 

his possession]; and, therefore, the law presumes that such person is not honest, and that he is the 

thief.” Cockin‟s Case, supra. 
9

But the rule has not been endorsed in all jurisdictions. As one court observed, “evidence 

of possession of stolen property, standing alone, may be as consistent with innocence as with 

guilt.” State v. Kelley, 119 P.3d 67, 71 (Mont. 2005). See also Bankston v. State, 309 S.E.2d 

369, 370 (Ga. 1983) (“[R]ecent possession of stolen goods will not automatically support a guilty 

verdict for theft or burglary . . . . [I]nstead, recent possession is to be viewed as probative 

evidence of the crime . . . and reviewed along with the other evidence in the case to determine 

whether any rational juror could find the defendant guilty beyond a reasonable doubt.”); State v. 

Smith, 726 P.2d 1232, 1235 n.1 (Utah 1986) (“The mere fact that a person was in conscious 

possession of recently stolen property is not sufficient to justify a conviction of theft. There 

must be proof of other circumstances tending of themselves to establish guilt.”); Cf J. Wigmore, 

9 Wigmore on Evidence § 2513 (3d ed. 1981) (noting, “One of the most troublesome and 

fruitless controversies has been whether under certain circumstances the accused‟s possession of 

stolen goods raises a presumption that he was the thief . . . . [T]he general trend is to repudiate 

any rule of presumption in the strict sense.”) (emphasis in original). 

We are of the opinion that the foregoing authorities express the better view. Thus we 

return to this jurisdiction‟s original moorings and as such abandon the so-called mere possession 

rule.4That is to say, the mere unexplained possession of recently stolen property standing alone 

does not automatically support a conviction for theft. Rather, such possession is to be considered 

along with the other evidence in a case, such as how recent or distant in time was the possession 

from the moment the item was stolen, and what are the circumstances of the possession (say, 

 

4 One writer has observed: 

[T]he rule on the possession of recently stolen property ought to be that 

there is no rule, per se. In this sense, there would be no rule of law on 

the subject. The exclusive, unexplained possession of recently stolen 

property would merely be another evidentiary fact, along with all the 

other facts and circumstances in the case, that tend to show the guilt of 

the defendant. As thus formulated, it would in no way prevent the trial 

court, the jury, or the appellate courts from making a reasonable 

inference of guilt when they are called upon to make their respective 

decisions. It would simply treat the fact of possession of recently stolen 

property in the same manner as any other fact from which reasonable 

inferences may be drawn.

Notes, The Presumption Arising from the Possession of Stolen Property: The Rule in Indiana, 6 Ind. L.

Rev. 73, 90-91 (1972).
10

possessing right next door as opposed to many miles away). In essence, the fact of possession 

and all the surrounding evidence about the possession must be assessed to determine whether any 

rational juror could find the defendant guilty beyond a reasonable doubt.5This formulation is 

also consonant with the rule concerning a charge of receiving stolen property, namely: 

“Knowledge that the property is stolen may be established by circumstantial evidence; however, 

knowledge of the stolen character of the property may not be inferred solely from the 

unexplained possession of recently stolen property.” Barnett v. State, 834 N.E.2d 169, 172 (Ind. 

Ct. App. 2005) (citation omitted). 

In reversing the trial court on sufficiency of evidence grounds the Court of Appeals 

concluded that in this case the circumstances did not support a reasonable inference that Fortson 

knew the property was stolen. The court noted that there was no evidence that Fortson attempted 

to conceal the truck from the officers, physically resist the officers, flee, or that he provided 

evasive answers. The court concluded, “Although Fortson was found to be in possession of 

 

5 As slightly modified we agree with the following instruction endorsed by the Montana Supreme Court 

and encourage its use where appropriate:

You are permitted but not required to infer from the defendant's 

possession of the property of another that the defendant is guilty of theft 

only if in your judgment such an inference is warranted by the evidence 

as a whole. It is your exclusive province to determine whether the facts 

and circumstances shown by the evidence warrant the inference to be 

drawn by you.

The possession of the property by the defendant does not shift the burden 

of proof which is always on the State to prove beyond a reasonable doubt 

every essential element of the offense with which defendant is charged.

The defendant's possession of property belonging to another may be 

satisfactorily explained in the evidence independently of any testimony 

of the defendant personally. If [the] defendant does take the witness 

stand to explain his [or her] possession of the property, the weight to be 

attached to his [or her] explanation is exclusively for you to determine.

Even if defendant's possession of the property is unexplained, you cannot 

find [the defendant] guilty, if after consideration of all the evidence in 

the case, you have a reasonable doubt as to his [or her] guilt.

If under the evidence, defendant‟s possession of the property of another 

is consistent with his [or her] innocence, then the jury should acquit the 

defendant unless [the state proves his or her guilt] beyond a reasonable 

doubt by other evidence in the case. 

State v. Kramp, 651 P.2d 614, 622 (Mont. 1982) (emphasis supplied).
11

recently stolen property, the State failed to provide any other facts to support an inference of 

knowledge . . . . [B]ecause the State could only prove that he was in possession of recently 

stolen property, that fact alone cannot support the inference that Fortson knew the truck was 

stolen.” Fortson, slip op. at 6. We agree. And with our holding today, the same conclusion 

would obtain had Fortson been charged with theft as opposed to receiving stolen property. 

Conclusion

We reverse the judgment of the trial court.

Shepard, C.J., and Dickson, Sullivan, and Boehm, JJ., concur.