The opinion
D.P. MARSHALL JR., Judge, concurring.
hi join the court’s judgment because precedent requires me to do so. But I write separately to express my concern over the rule, developed in our cases, that “possession of recently stolen property is prima facie evidence of guilt of burglary, larceny and possession of stolen property. This presumption arises even when there is no direct evidence of breaking or entering by the defendant.” Jacobs v. State, 287 Ark. 367, 369 , 699 S.W.2d 400, 401 (1985). Due process requires the State to prove every essential element of every crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). Entering, or remaining unlawfully in, another person’s home is an essential element of residential burglary. Ark.Code Ann. § 5-39-201(a)(l). May entry or presence be inferred beyond a reasonable doubt solely from possession ]¿of stolen property? I don’t think so. To satisfy the Due Process Clause, other facts and reasonable inferences must fill the evidentiary gap.
In some cases, this rule makes sense because of the defendant’s close proximity — both in time and place — to the scene of the crime and the presence of other circumstantial evidence tying the defendant to the crime. See, e.g., Stout v. State, 304 Ark. 610 , 804 S.W.2d 686 (1991); Lane v. State, 288 Ark. 175 , 702 S.W.2d 806 (1986); Jacobs, supra; Turner v. State, 64 Ark.App. 216 , 984 S.W.2d 52 (1998); Alexander v. State, 55 Ark.App. 148 , 934 S.W.2d 927 (1996); Brown v. State, 35 Ark.App. 156 , 814 S.W.2d 918 (1991). The defendant’s proximity and other circumstances — plus possession — make the inference reasonable, logical, and sound.
Consider Brown. The police approached Brown around 9:30 one morning because he matched the description of a suspect. Brown abandoned the shopping cart he was pushing and fled, but was soon caught. The cart contained a variety of items, including a cable box that the police traced to a house two blocks away. When the police arrived at the house, they noticed that the door locks had been pried. The residents identified the items recovered from the shopping cart as their property. 35 Ark.App. at 158-60 , 814 S.W.2d at 919-20 . The burglary had taken place sometime that morning between 7:45 (when the residents left for work) and |¾10:45 (when the police arrived at the home). 35 Ark.App. at 160 , 814 S.W.2d at 920 . “Given appellant’s possession of the stolen property, his flight from the police, and the close proximity in time and distance linking the appellant, the stolen property, and the burglarized residence,” our court affirmed Brown’s burglary conviction. 35 Ark.App. at 161 , 814 S.W.2d at 920 .
But in other cases, the rule defies logic. For example, in Ward v. State, someone broke into Wonder Junior High School in West Memphis over a weekend and stole musical instruments and shop tools. On Monday morning, Ward attempted to sell three of the stolen musical instruments at a Memphis pawn shop. When the police arrived at the shop, Ward claimed that the instruments were cast-offs from his recently disbanded musical group. The police pressed him for proof of ownership, but Ward, who had gone to his car to get his identification, got in his car and left. Police eventually arrested Ward back in West Memphis, and he gave conflicting stories— later proven to be outright lies — about his presence at the pawn shop and his possession of the instruments. Ward v. State, 280 Ark. 358 , 354-55, 658 S.W.2d 379, 380 (1983). Our supreme court, on a petition for review, concluded that the circumstantial evidence was substantial and affirmed Ward’s burglary and theft-of-property convictions. 280 Ark. at 356-57 , 658 S.W.2d at 381 .
On a writ of habeas corpus, however, the Eighth Circuit held that the evidence 14was insufficient to support Ward’s burglary conviction.
Ward’s possession of three of the ten stolen instruments, his flight from the pawn shop, his call to West Memphis police to determine whether any instruments had been reported stolen, and his lying to police about his ownership of the instruments and presence at the pawn shop were all consistent with the charge of theft and Ward’s prior trouble with the law. They were not, however, sufficient to establish the essential element of entry. In addition, Ward’s own testimony, though apparently disbelieved by the jury, failed to provide any further support in establishing the requisite elements. The evidence as a whole failed to provide even a scintilla of proof showing that Ward burglarized the school. Without that essential proof, we must conclude that the jury exceeded the bounds of legitimate inference, and engaged in speculation in finding Ward guilty on that count.
Ward v. Lockhart, 841 F.2d 844, 847-48 (8th Cir.1988).
This case is similar to Ward. There is no direct or circumstantial evidence that Mathis ever entered either Coit’s or Keist-ler’s residence. Mathis’s burglary convictions rest on these facts: he possessed the recently stolen jugs and jars of coins; he purchased beer with coins on the night that Keistler’s house was burgled; he was seen driving on a highway in the direction of Coit’s home sometime during the several-day period when the coins were stolen; and Mathis talked to his mother and his wife during jail visitation about his fingerprints being on the containers. Neither using coins to buy beer, nor traveling on a public road, nor the jail conversation supports the inference of entry into the homes beyond a reasonable doubt. Unlike in some of the other cases, Mathis was not caught in close proximity — either in time |5or place — to the crime scenes. But under precedent, the mere fact that Mathis possessed the coin jug and jars made a jury question on burglary and now constitutes substantial evidence supporting the convictions on appeal. E.g., Stout, supra; Jacobs, supra. Thus I must concur in the court’s disposition of the case.
But the better rule is the one expressed by this court when it considered the Ward case. “If the State had established appellant’s guilt solely on the basis of his possession of recently burglarized property, reversal would be mandated. However, the State may demonstrate by additional empirical evidence that a presumed fact is more likely than not to flow from the proven fact on which it is made to depend.” Ward v. State, 8 Ark.App. 209, 212 , 649 S.W.2d 849, 851 (1983). This is the correct statement of the law. More than mere possession of recently stolen property is needed to convict a person of burglary. Our supreme court should reexamine the presumption arising from possession of recently stolen property. And the court should reconsider whether this rule — a rule hardened by rote repetition— always satisfies due process in these kinds of cases. I don’t think it does. Not every thief is a burglar.