dissenting.
I must respectfully dissent from the majority holding in this case.
Arkansas Code Annotated section 5-36-106(a) (Repl.2006) provides that a person commits theft by receiving when he receives, retains, or disposes of stolen property of another person, knowing it was stolen or having good reason to believe it was stolen. The statute further provides that the unexplained possession or control by the person of recently stolen property gives rise to a presumption that a person knows or believes that property was stolen.1 In this case, the appellant was found to be in possession of a firearm seven to eight months after it was stolen, and although the legislature declined to define “recently stolen,” the majority has taken liberty to do so, drawing upon previous holdings by this court. Namely, 112in Williams v. State,2 this court held that four months between theft and apprehension was recent enough to allow presumption of the necessary mens rea, but in Doubleday v. State3 we held that a lapse of fourteen months was too long. Based on those cases, my esteemed colleagues have determined that “a little more than seven to eight months is too long, without more, to raise the statutory presumption applicable to recently stolen property.”
I find the majority’s reasoning lacking for more than one reason. First, 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.” Second, although the majority claims that it does “not intend to draw a bright line regarding what can be considered recently stolen for purposes of the theft-by-receiving statute,” that is precisely what it has done. The bottom line of the majority holding in this case is that a theft-by-receiving conviction can be evaded by concealing stolen goods (or stolen goods knowingly received) for seven or eight months, and then, at trial, declining to offer an explanation for possession of them.
Moving from general to specific concerns, the majority is wrong to say that there were no circumstances present in this ease to give rise to a presumption that the appellant knew or had good reason to believe the firearm in his possession was stolen. Mr. Thomas was a five-time convicted felon who was prohibited from possessing a firearm and would have been unable to legally obtain one, and he was on probation when the gun was found under the seat 11sof the car he had been driving. There were no passengers in the car. The absence of an active effort to conceal the gun from the police, such as occurred in Williams v. State,4 holds little weight in light of the fact that when he was stopped, Mr. Thomas was clearly intoxicated, had white powder on his nostrils, and almost walked into traffic. Under these circumstances, the fact finder c^uld place more weight on the fact that Thomas’ possession of the gun was both illegal and unexplained, and thereby arrive at the common-sense conclusion that, as provided under the statute, Thomas knew or had good reason to believe the gun was stolen. I would, therefore, affirm the trial court’s ruling that the statutory presumption applied.
. Ark.Code Ann. § 5 — 36—106(c)(1).
.93 Ark. App. 353, 219 S.W.3d 676 (2005).
. 93 Ark. App. 353, 219 S.W.3d 676 (2005).
. 84 Ark. App. 194, 138 S.W.3d 112 (2003).