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12/29/94 WILLIAM CLAYTON GORUM v. STATE

December 29, 1994

WILLIAM CLAYTON GORUM
v.
STATE



Appeal from Covington Circuit Court. CC-93-33. Ashley McKathan, TRIAL JUDGE.

Rehearing Denied August 18, 1995. Certiorari Denied December 1, 1995. Released for Publication March 23, 1996.

Bowen, Presiding Judge. All Judges concur.

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

William Clayton Gorum was convicted of receiving stolen property in the second degree, specifically a gold necklace. His sentence of four years' imprisonment was suspended and he was placed on probation. This is the direct appeal from that conviction.

I

The appellant argues the evidence was not sufficient to sustain his conviction. Review of the record on appeal convinces this Court that the question of the appellant's guilt or innocence was a factual question properly submitted to the jury.

The appellant contends that the State failed to prove that the gold rope chain necklace with a lightning bolt charm found in the defendant's possession was in fact the same necklace stolen from the victim in a burglary of the victim's residence. Although the necklace had no serial number or other identifying mark that would make an absolute identification possible, the victim's mother (who gave her son the necklace) testified that she was able to "recognize" the necklace "because it had the charm on it." R. 70-71. "It looked the same and I haven't seen a charm like that before." R. 78. The 14-year-old victim testified that he was able to identify his necklace and stated, "It was my necklace." R. 81.

We find that the prosecution presented sufficient evidence to raise an issue of fact for the jury as to the actual identify of the necklace.

"'Although the property must be identified by the most direct and positive testimony of which the case is susceptible, Haun v. State, 44 Ala. App. 675, 678, 219 So. 2d 906 (1969), "(w)hat is sufficient may depend, however, on the nature of the thing taken and the circumstances of the particular case, and what evidence constitutes an identification is generally a matter for the jury." 50 Am. Jur. 2d Larceny, Section 158 (1970). Identity may be established by circumstantial evidence. Harper v. State, 389 So. 2d 184, 185 (Ala.Cr.App. 1980). Correspondence between the amount, kind and nature of the property stolen with similar characteristics of the property found may supply the necessary identification. 50 Am. Jur. 2d Larceny at Section 158.

"'"Identity may be established by the testimony of the owner of the goods that the articles found in the possession of accused, where they have no earmarks to identify them, are of the same brand and character as the stolen goods, and that, from their brand, character, and appearance, he believes them to be the property stolen from him, especially where many different articles of various kinds, brands, and sizes were stolen, and articles similar in make, brand, character, and appearance to the stolen ones were found in the recent possession of accused."

"'Evidence that the goods recovered were similar in kind, quantity and character to the stolen property may provide sufficient evidence of identification to create a jury question. Bills v. State, 49 Ala. App. 726, 728, 275 So. 2d 706 (1973).'

" [Alldredge v. State,] 431 So. 2d [1358,] 1360-61 [(Ala.Cr.App. 1983)]. We decline to hold that items such as those involved in this case, which 'have no earmarks to identify them,' can never be the subject of stolen property. We agree with the Virginia Court of Appeals which stated: '"When an accused is found in possession of goods of a type recently stolen, strict proof of identity of the goods is not required." [ Henderson v. Commonwealth, 215 Va. 811, 213 S.E.2d 782], 813, 213 S.E.2d [782,] 783 [(1975)].' Wright v. Commonwealth, 2 Va. App. 743, 348 S.Ed.2d 9, 12 (1986)."

Sanders v. State, 641 So. 2d 1260, 1262 (Ala.Cr.App. 1993). The appellant also contends that the evidence is insufficient because the prosecution failed to establish that he had knowledge that the ...


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