United States v. Otts ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4392
LONNIE OTTS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
William G. Connelly, Magistrate Judge.
(CR-95-391-AW)
Submitted: August 27, 1996
Decided: January 21, 1997
Before ERVIN, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
James K. Bredar, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Hollis Raphael Weisman, Assis-
tant United States Attorney, Hyattsville, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Lonnie Otts appeals his conviction for possession of stolen prop-
erty, 36 C.F.R. § 2.30(a)(1) (1996). Because there was sufficient evi-
dence to convict, we affirm.
I
Stephen Laws testified that on the morning of October 11, 1994,
his pickup truck broke down on the southbound side of the Baltimore-
Washington Parkway. John Gott, a Park Police officer, was patrolling
on the northbound side of the highway when he noticed Laws sitting
next to his truck. By the time Gott had turned around and arrived on
the scene, Laws had left to obtain assistance. However, a car had
parked behind Laws's truck. Gott observed a male standing next to
the truck and another male, later identified as Otts, sitting in the car's
passenger seat. Gott asked the first man what he was doing. He
replied that he was fixing the oil filter on his brother's truck. The man
then entered the car and hastily drove away.
Gott was suspicious that someone who was repairing a truck would
leave so abruptly. He ascertained that the truck was registered to
Laws and asked a communications officer to contact Laws to see if
he knew the location of his truck. Gott also advised the communica-
tions officer that he was following the car that had left the scene at
a high rate of speed. Gott noticed that the rear hatch window of the
car was broken. A check of the car's license plate revealed that the
car had been reported stolen.
Gott stopped the car and noticed that its ignition lock had been bro-
ken. He observed a first aid kit, a case of motor oil, and spools of wire
in the car's back seat. Gott learned from another officer who was with
Laws's truck that there was a sign of forced entry (a smashed passen-
ger vent window) to the truck and that Laws had returned to his truck.
Gott returned to the truck and asked Laws if anything was missing
from the truck. Laws replied that he was missing spools of wire, a
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case of motor oil, and a first aid kit. Laws identified the items found
in the car as his wire, oil, and first aid kit, and Gott returned those
items to Laws. Laws informed the officers that when he left the scene,
the passenger window of his truck was not broken. Further, a crowbar
and bolt cutters found in the truck did not belong to Laws.
A magistrate judge found Otts guilty of possession of stolen prop-
erty. He rejected Otts's claim that his presence was innocent. The
magistrate judge concluded that the following facts established his
guilt: Otts's presence at the crime scene; his presence in a stolen car
which hastily left the scene; and his presence in a car where items
stolen from the truck were in plain view. The magistrate judge sen-
tenced Otts to probation of two years.
Otts appealed to the district court, which concluded that there was
sufficient evidence to convict. The district court found that the evi-
dence established that Otts either stole the items or aided and abetted
the driver of the car in stealing them. Further, the court determined
that Otts either actually or constructively possessed the stolen items.
Otts now appeals this decision.
II
On appeal, Otts argues that his presence at the crime scene was
innocent. It is true that mere presence at a crime scene is insufficient
to establish either possession of contraband or aiding and abetting
criminal activity. See United States v. Rusher , 966 F.2d 868, 878 (4th
Cir.), cert. denied, 506 U.S. 926 (1992); United States v. Spoone, 741
F.2d 680, 686 (4th Cir. 1984), cert. denied, 469 U.S. 1162 (1985).
The evidence in this case, however, demonstrates that Otts was
more than merely present at the crime scene. He was travelling in an
obviously stolen car which pulled in behind a disabled truck. He was
present when either he or the driver of the car smashed the passenger
window of the truck. He was there when the items were stolen from
the truck and placed in the car. When Gott arrived on the scene, Otts
was seated in the car with the stolen items in plain view. At the same
time, the driver of the car was beside the truck. It is fair to infer that
the driver was searching for more items to steal or that he intended
to retrieve the crowbar and bolt cutters that were ultimately left in the
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cab of the truck. Otts remained in the car when it departed hastily
from the scene.
Otts was convicted of "[o]btaining or exercising unlawful posses-
sion over the property of another with the purpose to deprive the
owner of the property." 36 C.F.R. § 2.30(a)(1). The evidence in this
case supports a finding that Otts at the least aided and abetted the
driver of the car in stealing the property.
The evidence further shows that Otts at least constructively pos-
sessed property belonging to Laws. "Constructive possession exists
when the defendant exercises, or has the power to exercise, dominion
and control over the item," United States v. Laughman, 618 F.2d
1067, 1077 (4th Cir.), cert. denied, 447 U.S. 925 (1980), and has
knowledge of the item's presence, United States v. Bell, 954 F.2d 232,
235 (4th Cir. 1992). Constructive possession is susceptible of proof
by circumstantial as well as direct evidence. Laughman, 618 F.2d at
1077. Here, Otts was seated alone in the car with items he knew to
have been stolen in full view. This is sufficient to show that he had
dominion and control over those items.
III
We accordingly affirm the conviction. We dispense with oral argu-
ment because our review of the materials before us reveals that argu-
ment would not aid the decisional process.
AFFIRMED
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