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Criminal Practice – Larceny after Breaking & Entering – Doctrine of Recent Possession – Unoccupied House

Where the state failed to prove that plaintiff had exclusive control of the stolen property, the state was not entitled to the presumption of guilt arising from the doctrine of recent possession.

We vacate defendant’s convictions of felonious breaking and entering and larceny after breaking and entering.

Facts

The victim inherited a house at 30 Woody Street in Marion. He visited the house several times. On April 1, 2014, the victim found the house’s basement door unlocked and several items of personal property missing.

On April 2nd, a sheriff’s detective found some of the stolen property at 24 Ridge Street. The home’s occupant said someone driving a white pickup truck had unloaded the property earlier that day.

On April 4th another sheriff’s detective found defendant sitting in the driver’s seat of a white pickup truck parked across the street from 24 Ridge Street. With defendant’s permission, the detective searched the truck and found more of the property that had been stolen from the victim’s house.

Defendant was indicted twice – once for the items found on April 2nd and once for the items found in her possession on April 4th – for felonious breaking and entering and larceny after breaking and entering.

Defendant admitted to using her pickup truck to help a friend, Michael Nichols, move items from an abandoned house at 50 Woody Street (not the victim’s house at 30 Woody Street) to 24 Ridge Street on April 2, 2014. She also testified that Nichols told her “there was still a lot of stuff up there” at 50 Woody Street that he thought she might be interested in, so she went up there and got the items the detective found in her truck.

Analysis

The state conceded that its evidence was circumstantial and relied on the doctrine of recent possession to raise the presumption of guilt. For the doctrine of recent possession to apply, the state must show (1) the property was stolen, (2) the defendant had possession of the property, subject to her control and disposition to the exclusion of others, and (3) the possession was sufficiently recent after the property was stolen.

Exclusive possession means possession to the exclusion of all persons not party to the crime.

Although defendant was charged with breaking and entering and larceny after breaking and entering in connection with the items found in her possession on April 4th, her convictions are based on the indictment alleging a break-in on March 20th and the items found on April 2nd. That indictment specifically described the stolen property as “a Sears pushmower, aluminum ladder, monitor heater, 100 gallons of kerosene, electrical wiring, flooring and a German [cuckoo] clock.” These items were discovered at 24 Ridge Street on April 2nd, outside defendant’s presence, although defendant admitted she had driven a short distance with the property in her truck earlier that day.

Thus, the state’s own evidence suggested that up to two weeks may have passed between the alleged break-in and larceny, on March 20th, and the discovery of the stolen property, on April 2nd, and the property was not actually found in defendant’s possession.

Defendant testified she did not know the property was stolen, and believed it belonged to a friend of Nichols, when she put it in her truck on April 2nd. She also testified that, as of April 2nd, her last contact with Nichols was in “November or early December of 2013.” There was no evidence tending to show defendant possessed, controlled, or exercised dominion over the stolen property during the two weeks between the date of the alleged theft and her admitted transport of that property.

Moreover, the state was required to prove that defendant possessed the stolen property to the exclusion of all persons not party to the crime. The record does not indicate whether Nichols was charged in connection with the stolen property identified in defendant’s indictments, and the state did not assert a criminal conspiracy between defendant and Nichols.

However, even if Nichols was a party to the crime, the state failed to show that, between March 20th and April 2nd, the possession of the stolen property by defendant and/or Nichols was to the exclusion of all persons not party to the crime. The evidence suggests the stolen property was stored at an abandoned building at 50 Woody Street after its theft and before defendant took it to 24 Ridge Street two weeks later. There was no evidence that, between March 20th and April 2nd, defendant possessed, controlled, or even knew of the stolen property located at 50 Woody Street. The evidence also did not show the stolen property was not possessed or controlled by any third parties unconnected to the crime during those two weeks. In the absence of such a showing, the state’s evidence was insufficient to support an inference that defendant broke into the victim’s residence on March 20th and stole the property she transported to 24 Ridge Street two weeks later.

The state presented no evidence that, other than that brief period of time on April 2nd, the property was in defendant’s possession or subject to defendant’s control, much less to the exclusion of all persons not party to the crime. The state’s evidence was insufficient to support defendant’s convictions for the breaking and entering and larceny that allegedly occurred on March 20, 2014.

Vacated.

Dissent

(Tyson, J.) It is undisputed that defendant made the first trip from 50 Woody Street to 24 Ridge Road – with stolen property in her truck – alone. She was also alone in her truck with more stolen property when the detective approached her.

Thus, the state’s evidence tends to show that defendant had possession of the recently stolen property, subject to her control and disposition to the exclusion of others. The length of time defendant possessed the stolen property is not material to the state’s evidence which, under the doctrine of recent possession, raised the presumption that defendant was the thief who had stolen the goods.

I find no error and so respectfully dissent.

State v. McDaniel (Lawyers Weekly No. 011-175-18, 29 pp.) (Linda McGee, C.J.) (John Tyson, J., dissenting) Appealed from McDowell County Superior Court (J. Thomas Davis, J.) Deborah Greene for the state; Gilda Rodriguez for defendant. N.C. App.

 


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