State v. McDaniel

. Regardless, under Maines, “the

evidence must show the person accused of the theft had complete dominion, which

might be shared with others, over the property . . . which sufficiently connects the

accused person to the crime[.]”

Id.

 (emphasis added).

      Defendant acknowledged she was briefly in possession of the stolen property

on 2 April 2014, when she transported it a few blocks from a building at 50 Woody

Street, where the property was being stored, to the residence at 24 Ridge Street. The

dissent appears to conclude this constituted “requisite actual possession and control

over the recently stolen property” sufficient to connect Defendant with the theft that

occurred two weeks prior.     As noted above, however, “mere possession of stolen

property is insufficient to raise a presumption of guilt.” McQueen,

165 N.C. App. at 460

598 S.E.2d at 677

 (citations omitted).         In Maines, the mere fact that the

defendant “was driving the car [containing the stolen property] and presumably in

control of it and its contents” was insufficient to support an inference that he was the



                                          - 14 -
                                  STATE V. MCDANIEL

                                    Opinion of the Court



thief based on the doctrine of recent possession. Maines,

301 N.C. at 676

. In this case, like the Maines defendant, 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 2 April 2014. She also testified that, as of 2 April 2014, 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. Compare with State v. Lytton,

88 N.C. App. 758, 759

365 S.E.2d 6, 7

 (1988) (holding evidence was sufficient to raise recent

possession doctrine where “evidence [did] not suggest that anyone other than [the]

defendant and [another individual who was party to the crime] possessed, controlled,

or had anything to do with the [stolen property]; instead . . . only they had and

controlled the [stolen property] by showing [it] to [a third party], offering to sell [it],

setting their price, and receiving the purchase money.”).

       Moreover, the State was required to demonstrate Defendant possessed the

stolen property “to the exclusion of all persons not party to the crime.” Maines,

301 N.C. at 675

 (emphasis added). The dissent asserts that, in this

case, “[n]o one disputes Nichols was a party to taking the [stolen] items hidden

underneath 50 Woody Street[.]” We note the record does not indicate whether Nichols

was charged in connection with the stolen property identified in either indictment,



                                           - 15 -
                                 STATE V. MCDANIEL

                                  Opinion of the Court



and the State did not assert a criminal conspiracy between Defendant and Nichols.

However, even assuming arguendo that Nichols was a party to the crime, the State

failed to show that, between 20 March 2014 and 2 April 2014, the possession of the

stolen property by Defendant and/or Nichols was “to the exclusion of all persons not

party to the crime.”

Id.

 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 tending to show that,

between 20 March 2014 and 2 April 2014, 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 showing,

the State’s evidence was insufficient to support an inference that Defendant broke

into Mr. Sheline’s residence on 20 March 2014 and stole the property she transported

to 24 Ridge Street two weeks later.

      This case is factually distinguishable from State v. Wilson,

313 N.C. 516

330 S.E.2d 450

 (1985), and State v. Foster,

149 N.C. App. 206

560 S.E.2d 848

 (2002), cases

cited by the dissent. In Wilson, our Supreme Court held “[i]t is not always necessary

that the stolen property be actually in the hands of the defendant in order to trigger

the inference that [the defendant was] the thief. The doctrine [of recent possession]

is equally applicable where the stolen property is under the defendant’s personal



                                         - 16 -
                                  STATE V. MCDANIEL

                                   Opinion of the Court



control.” Id. at 536,

 (citations omitted) (emphasis added). In

Wilson, the Court held the jury was properly instructed on the doctrine of recent

possession where a stolen watch “was seen [after the theft] only in the hands of the

[defendant’s girlfriend] or the defendant until it was sold by the defendant.”


(emphasis in original). The defendant’s girlfriend was seen wearing the watch “two

or three weeks after the crime[] [was] committed[,] [and a] week later the watch was

seen in the hands of the defendant.”

Id. at 535

330 S.E.2d at 463-64

. Under these

circumstances,    a   jury   instruction   on    recent   possession   was   appropriate,

notwithstanding “the intervening possession of the watch by [the defendant’s

girlfriend][.]”

Id. at 535

.

      In Foster, the defendant was seen driving a truck containing stolen property

mere hours after the property was stolen. There were two passengers in the truck.

On appeal, the defendant did not argue the jury was improperly instructed on the

doctrine of recent possession; he contended the trial court erroneously refused to

include the instruction that “the [stolen] goods must be found in [the] defendant’s

possession ‘to the exclusion of others.’”

149 N.C. App. at 209

560 S.E.2d at 850

. This

Court held the trial court properly denied the defendant’s request for the additional

instruction because “[t]he evidence [did] not suggest that anyone other than [the]

defendant or the other passengers possessed or controlled the [stolen property] seen

in the back of the truck [the] defendant was driving.”

Id. at 209

560 S.E.2d at 851

.



                                           - 17 -
                                 STATE V. MCDANIEL

                                  Opinion of the Court



       Unlike in Wilson, there was no evidence in the present case connecting the

property found at 24 Ridge Street on 2 April 2014 to Defendant during the two weeks

between its theft and her admitted transport of the property from 50 Woody Street to

24 Ridge Street. There was no evidence Defendant went to 50 Woody Street during

those two weeks, or that the stolen property was otherwise under Defendant’s

“personal control.” Further, even assuming possession of the property by Nichols

could be imputed to Defendant, the State did not establish that only Nichols

possessed or controlled the property after it was stolen, i.e., to the exclusion of any

third parties not connected to the crime.

       The dissent also cites State v. Johnson,

60 N.C. 235

 (1864), in which stolen

property was found six weeks after its theft in a house occupied exclusively by the

defendant and his wife. Our Supreme Court affirmed the trial court’s jury instruction

that

             owing to the length of time which had elapsed from the
             stealing of the goods until the discovery of them in the
             possession of the defendant, no presumption could arise
             that [the defendant] had stolen them; but the fact of his
             having them in possession was evidence which [the jury]
             would consider with the other evidence in the cause in
             determining [the defendant’s] guilt or innocence.

60 N.C. at 236

 (emphasis added).      The Court explicitly held that, although the

defendant’s possession of stolen goods was “evidence to be considered[,]” the mere fact

of possession did not “raise a legal presumption of the taking[.]”

Id. at 237

. Johnson



                                         - 18 -
                                      STATE V. MCDANIEL

                                       Opinion of the Court



thus offers little guidance in the present case, because the precise question before us

is whether the State’s evidence did “raise a legal presumption” of Defendant’s guilt

based on the theory of recent possession.

       The State’s argument that Defendant broke into Mr. Sheline’s residence

around 20 March 2014 and stole the items that were found at 24 Ridge Street on 2

April 2014 was based entirely on the evidence that Defendant admitted transporting

the property on 2 April 2014, and, two days later, Det. Grindstaff found Defendant in

a white pickup truck, parked across from the house at 24 Ridge Street, in possession

of entirely different personal property that was also missing from the house at 30

Woody Street.2 We find this evidence insufficient to support Defendant’s convictions

on the 20 March 2014 charges based on the doctrine of recent possession. Defendant

admitted the stolen property found outside the house at 24 Ridge Street was briefly

in her possession on 2 April 2014. However, the State presented no evidence that,

other than that brief period of time on 2 April 2014, 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.” See Foster,

149 N.C. App. at 209

560 S.E.2d at 851

 (citation

and quotation marks omitted). As discussed above, there was no evidence suggesting

Defendant had exclusive possession or control of the stolen property during the two



       2  We note Defendant was not charged with possession of stolen property in either indictment
at issue in this case.


                                              - 19 -
                                        STATE V. MCDANIEL

                                          Opinion of the Court



weeks that elapsed between the alleged crimes, on or about 20 March 2014, and

Defendant’s admitted transport of the property on 2 April 2014.

        The State contends that, because Defendant “ha[d] the power and intent to

control the access to and use of [her truck][,] [she] ha[d] possession of the [vehicle’s]

known contents[]” when, by her own admission, she transported the stolen property

on 2 April 2014.         According to the State, Defendant was “the driver and only

authorized user of the truck[,]”3 and “there [was] no evidence that [] Nichols was

present in the truck at the time [Defendant] had possession of the stolen items.”4

Even taking these statements as true, they do not establish exclusive possession.

        In Maines, our Supreme Court held that “the fact [that the defendant] was

driving the car [containing stolen property] and presumably in control of its contents”

was alone insufficient to support an inference that “he was the thief who stole [the

property] based on the possession of stolen goods.” Maines,

301 N.C. at 676

. In that case, the State failed to show the stolen goods found in the

defendant’s possession were “subject to his control and disposition to the exclusion of


        3 The State did not present evidence Defendant was the “only authorized user of the truck[.]”

Defendant testified the white pickup truck “belonged to [her] father[.]” When asked whether “[she
was] the one driving [the truck] all the time,” Defendant stated: “I [] borrowed it during that week [in
April 2014]. I didn’t drive it all the time, but [my father] let me borrow it occasionally.”

        4  The parties dispute whether Defendant ever represented that Nichols was a passenger in the
truck when she transported the stolen property to 24 Ridge Street on 2 April 2014, but Defendant
submits that she “was not charged with conspiracy, nor was the jury instructed on acting in concert,
[so] [] Nichols was ‘not a party to the crime’ and his [hypothetical] possession of the alleged[ly] stolen
items could not be attributed to [Defendant].”


                                                 - 20 -
                                        STATE V. MCDANIEL

                                         Opinion of the Court



others.”

Id. at 675

. In this case, Defendant testified she did not

know the property was stolen when Nichols told her it belonged to a friend and asked

her to drive it to another residence. She also testified that, prior to 2 April 2014, she

last spoke with Nichols in November or December 2013. Under Maines, the mere fact

that Defendant transported stolen property did not demonstrate the property was

“subject to [her] control and disposition to the exclusion of others.”

Id.


        Because the State failed to prove beyond a reasonable doubt the second

element5 of the doctrine of recent possession, the evidence was insufficient to support

Defendant’s convictions for the breaking and entering and larceny that allegedly

occurred on or about 20 March 2014. Accordingly, we vacate Defendant’s convictions.

As a result, we need not address Defendant’s remaining argument regarding the

length of her probation. See, e.g., State v. Martin,

222 N.C. App. 213, 222

729 S.E.2d 717, 724

 (2012).

        VACATED.

        Judge DAVIS concurs.




        5 The dissent contends that “[w]hether the two weeks, which may have passed between the
breaking and entering and larceny and the discovery of the property being stolen, and Defendant’s
admitted possession, is too remote to apply the doctrine of recent possession was a proper question for
the jury[.]” We note that whether a defendant’s possession of stolen property was sufficiently “recent”
after the larceny is the third element of the doctrine of recent possession, and our holding in this case
“turns upon the second element [of the doctrine]: whether the stolen goods were found in [D]efendant’s
custody and subject to [her] control and disposition to the exclusion of others.” See Maines,

301 N.C. at 675

. Because we have concluded the State failed to prove exclusive possession,
it is unnecessary to consider whether Defendant’s possession of the stolen property was “too remote to
apply the doctrine of recent possession[.]”

- 21 -
STATE V. MCDANIEL

Opinion of the Court

Judge TYSON dissents by separate opinion.

-2-
No. COA17-856 – State v. McDaniel

TYSON, Judge, dissenting.

The majority’s opinion correctly states the applicable standard of review of the

trial court’s ruling on Defendant’s motion to dismiss, yet erroneously concludes the

State failed to introduce any competent evidence tending to show, and as the jury

found, an essential element of the doctrine of recent possession and reverses

Defendant’s convictions for breaking and entering and larceny. My review and vote

concludes no error occurred in Defendant’s conviction by the jury or in the judgment

entered thereon. I respectfully dissent.

I. Possession of Recently Stolen Goods

Defendant’s recent possession of stolen goods raises a presumption of guilt,

where the State’s evidence tends to show the stolen goods were in Defendant’s custody

or control recently after the larceny thereof. The elements of this crime are:

(1) the property described in the indictment was stolen; (2)
the stolen goods were found in defendant’s custody and
subject to his control and disposition to the exclusion of
others though not necessarily found in defendant's hands
or on his person so long as he had the power and intent to
control the goods; and (3) the possession was recently after
the larceny, mere possession of stolen property being
insufficient to raise a presumption of guilt.

State v. Maines,

301 N.C. 669, 674

273 S.E.2d 289, 293

 (1981) (citations omitted).

      In Maines, our Supreme Court held the recent possession doctrine did not

apply to that defendant. The stolen items were found inside a vehicle the defendant

was driving.

Id. at 670

273 S.E.2d at 291

. Three other individuals were also present
                                 STATE V. MCDANIEL

                                  TYSON, J., dissenting



inside the car, including the registered owner of the vehicle.

Id. at 676

.

       The Supreme Court noted the “[d]efendant did not have actual or personal

possession of the stolen property. None of the goods were on his person[.]”

 The

Court found that the defendant’s possession of the stolen goods was “at most

constructive, based on the fact he was driving the car and presumably in control of it

and its contents.”

 The Supreme Court reversed the defendant’s conviction because

this analysis was “based on stacked inferences.”

 The jury was required to infer

that the defendant possessed the recently stolen goods from the lone fact that he was

driving the car with the car’s owner and others inside, and then the jury was required

to further infer he was the perpetrator who had broken and entered and stolen the

items.


       Here, and as acknowledged in the majority’s opinion, it is both admitted and

undisputed that Defendant traveled alone to 50 Woody Street, loaded the items onto

her truck with Nichols’ assistance, and while again alone, with actual and exclusive

possession, drove the stolen items to 24 Ridge Street. It is also undisputed when she

was approached by Detective Grindstaff, Defendant actually and exclusively

possessed other items, which had also been recently stolen from exactly the same

location.




                                           2
                                   STATE V. MCDANIEL

                                   TYSON, J., dissenting



         The State’s evidence was properly admitted and tends to show: “[D]efendant

had possession of the [recently stolen] property, subject to [her] control and

disposition to the exclusion of others.” State v. McQueen,

165 N.C. App. 454, 460

598 S.E.2d 672, 677

 (2004).

         The defendant’s constructive possession in State v. Maines is factually

distinguishable from Defendant’s admitted and actual possession of recently stolen

goods.

                                    II. State v. Foster

         The majority’s opinion cites State v. Foster,

149 N.C. App. 206

560 S.E.2d 848


(2002), and asserts Defendant’s possession was not “to the exclusion of all persons not

party to the crime,” and the presumption of guilt, spawned by her recent possession,

would not apply. In Foster, the store owner locked his doors on 10 December.

Id. at 207

560 S.E.2d at 849

. When he returned on 11 December, items including a Lawn

Boy mower, trailer, tires, rims, and other items were missing. In the interim early

morning hours, police had observed the defendant-Foster and two other individuals

in the defendant’s truck. The Lawn Boy and tires and rims were in the truck at the

time.


         This Court recognized, “[e]xclusive possession does not necessarily mean sole

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

party to the crime.”

 (citations omitted) (emphasis supplied). The evidence in Foster



                                            3
                                 STATE V. MCDANIEL

                                  TYSON, J., dissenting



showed the defendant and the two other passengers in the truck were all parties to

the crime. The evidence did “not suggest that anyone other than defendant or the

other passengers possessed or controlled the tires, rims, and Lawn Boy seen in the

back of the truck defendant was driving.”


      Whether Defendant possessed the recently stolen items to the exclusion of

anyone else, who was not a party to the crime is not the issue before us. No one

disputes Nichols was a party to taking the items hidden underneath 50 Woody Street

and loading them into Defendant’s truck. Defendant admits Nichols was involved

with the stolen items.

      In State v. Lytton,

88 N.C. App. 758

365 S.E.2d 6

 (1988), the defendant was

charged with and convicted by a jury of felony larceny. This Court held evidence was

sufficient to raise the recent possession doctrine where another man, in addition to

the charged defendant, was a party to the crime and the evidence did not suggest that

anyone other than the defendant and this other man “possessed, controlled, or had

anything to do with” the stolen guns; instead, it tended “to show that only they had

and controlled the stolen guns.”

Id. at 759

365 S.E.2d at 7

. Defendant’s argument,

asserting she was not charged with conspiracy and the jury was not instructed on

acting in concert, and “no other persons party to the crime[s]” were charged for the

jury to consider, is irrelevant to the issue before us on her motion to dismiss.




                                           4
                                  STATE V. MCDANIEL

                                  TYSON, J., dissenting



      Once the stolen items were loaded into her truck, Defendant had the requisite

actual possession and control over the recently stolen property. Whether Nichols

could have also controlled the stolen property is irrelevant to the sufficiency of the

State’s evidence to overcome and deny Defendant’s motion to dismiss and to support

the jury’s verdict of Defendant’s guilt under the doctrine of recent possession of stolen

goods. See

id.


      Further, the majority’s opinion acknowledges Defendant was briefly in

possession of the stolen property. The length of time Defendant possessed the stolen

property is not material to the State’s evidence tending to show and raising the

presumption that Defendant was the thief, who had stolen the goods under the

doctrine of recent possession to sustain her motion to dismiss.

                                  III. State v. Wilson

      In State v. Wilson, the Supreme Court recognized no bright line test exists for

the length of time to allow the inference of guilt of the theft spawned by the recent

possession of the goods stolen. State v. Wilson,

313 N.C. 516, 536

330 S.E.2d 450, 464


(1985). The Court recognized “[t]here is no specific period, however, beyond which

possession can no longer be considered ‘recent.’ Rather, the term is a relative one and

will depend on the circumstances of each case.”

 (citations omitted).

      In light of all of the other circumstances in Wilson, our Supreme Court held

the defendant and his girlfriend’s possession of the stolen watch, one to three weeks



                                           5
                                 STATE V. MCDANIEL

                                  TYSON, J., dissenting



after the victim had been stabbed and his watch was stolen “was sufficiently recent

to support a reasonable inference of the defendant’s guilt under the doctrine of recent

possession.”

Id. at 536-37

.

      Here, Defendant admitted she alone had transported the items that had been

stolen on or about 20 March 2014 in her truck and she had unloaded them at the

Ridge Street address. Her possession of the recently stolen goods was exclusive and

100% within her control at that time. Whether the two weeks, which may have

passed between the breaking and entering and larceny and the discovery of the

property being stolen, and Defendant’s admitted possession, is too remote to apply

the doctrine of recent possession was a proper question for the jury and does not

support vacating Defendant’s conviction as a matter of law. See

id. at 536-37

.

                                    IV. Conclusion

      The State’s evidence tended to show Defendant’s exclusive possession of

recently stolen goods. The trial court correctly submitted the case to the jury. The

jury considered and weighed the evidence and properly convicted Defendant. See

State v. Johnson,

60 N.C. 235, 237-38

 (1864) (upholding larceny conviction where

goods were stolen six weeks prior to when they were found in a house rented by the

defendant and his wife). “It appears to have been fairly laid before the jury, according




                                           6
                                  STATE V. MCDANIEL

                                   TYSON, J., dissenting



to the view here taken, and the jury have come to a conclusion with which we have

no right to interfere, if we had the inclination.”