State v. Brannon , 21 N.C. App. 464 ( 1974 )

204 S.E.2d 895 (1974) 21 N.C. App. 464

STATE of North Carolina
v.
Calvin Louis BRANNON.

No. 7421SC66.

Court of Appeals of North Carolina.

May 15, 1974.

Atty. Gen. Robert Morgan by Richard F. Kane, Associate Atty. Gen., Raleigh, for the State.

Blanchard, Tucker, Denson & Cline by Irvin B. Tucker, Jr., Raleigh, for the defendant.

CARSON, Judge.

The defendant moved for a judgment as of nonsuit as to each count at the end of the State's evidence and again at the end of all the evidence. We hold that the motion as to the charge of larceny of the Frazier dogs should have been allowed. The State contends that the defendant was in constructive possession of the Frazier dogs and that the doctrine of possession of recently stolen property would be sufficient to take the larceny charge to the jury. However, the facts do not support the constructive possession of the dogs by the defendant. The uncontradicted testimony showed that the defendant's mother, Hattie Brannon, owned one of the lots and that the defendant's sister, Mary B. Thompson, owned the other lot. Furthermore, the dog pen was located somewhere between the two lots. In neither event would the lot have been owned or controlled by the defendant, absent further proof. The only other evidence relating to the defendant's control over the lot was testimony by Chief Wilson that he had seen the defendant approximately one month earlier back by the dog pen "handling a dog through the fence."

To invoke the doctrine of constructive possession, it is necessary that the defendant be shown to have the right of control over the premises in question. If the defendant could and did command the use of the dog lot, it would have been in his constructive possession. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); State v. Meyers, 190 N.C. 239, 129 S.E. 600 (1925). However, there is no competent substantive evidence that the defendant did, in fact, have command of the lot. It was not on the defendant's property, and he could not be placed around the lot within the month preceding the theft. At best, the defendant's connection with the lot would be speculation and conjecture. This type of evidence has been held to be insufficient to uphold the doctrine of constructive possession. State v. Glenn, 251 N.C. 156, 110 S.E.2d 791 (1959); State v. McLamb, 236 N.C. 287, 72 S.E.2d 656 (1952).

The State relies on the out of court statement allegedly made by Hattie Brannon to Chief Wilson. This was introduced by Chief Wilson as a prior inconsistent statement by the witness Hattie Brannon. While the statement was admissible for the specified purpose, it was not substantive evidence against the defendant. State v. Mack, 282 N.C. 334, 193 S.E.2d 71 (1972); Hubbard v. R. R., 203 N.C. 675, 166 S.E. 802 (1932); State v. Neville, 51 N.C. 423 (1859); 1 Stansbury's North Carolina Evidence (Brandis Revision, 1973), § 46. Hattie Brannon denied making such a statement and denied its veracity. Thus, it could not be considered on the question of nonsuit.

Considering all the evidence in the light most favorable to the State, we hold that there was insufficient evidence to submit to the jury the charge of larceny of the Frazier dogs. The evidence only gave rise to suspicion or conjecture, and nonsuit should have been allowed.

The defendant had been seen in the dog pen belonging to George Gunter approximately one month before the theft occurred. Upon being discovered there, he jumped over the fence and ran. The defendant was also seen on the morning of the theft within 100 yards of the prosecuting witness' house in the same car in which the homemade leash was subsequently discovered. The leash was positively identified as being on the dogs which were stolen. It was found in the defendant's car the following day. There is enough circumstantial evidence to be submitted to the jury on the charge of the larceny of the Gunter dogs if the evidence was admissible.

The defendant strenuously contends that the leash was seized as a result of an unlawful search and was thus inadmissible in evidence. A motion to suppress the evidence was duly made during the trial. A lengthy voir dire was conducted by the trial court. At the end of the voir dire, the court overruled the motion to suppress. The trial court expressed an opinion that the search warrant was unlawful but stated that it did not matter inasmuch as the leash was in plain view.

The items in the trunk of the defendant's car were seen by the Deputy Sheriff of Forsyth County while Chief Wilson was inside searching the house. He could not identify the leashes or collars that he saw but went to get a search warrant upon their discovery. The trial court held that the search warrant was invalid because of technical defects, but was unnecessary inasmuch as the objects were in plain view. Conceding, arguendo, that the items were, in fact, in plain view, there is still an unresolved question as to whether or not Deputy Sheriff Weaver had a right to be searching the defendant's yard and car. The State contends that permission to search was given by the defendant's mother who owned the property. The defendant's mother strongly denies that she gave permission to anybody to search anywhere. Although a lengthy voir dire was held, the trial court did not make any findings of fact or conclusions of law based thereon. We believe that the failure to make the findings of fact and the conclusions of law required in this case was erroneous. State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969); State v. Barnes, 264 N.C. 517, 142 S.E.2d 344 (1965). The failure to make such findings and conclusions deprives us of the necessary information needed to adjudicate the legality of the search and the correctness of the ruling of the trial court, making it necessary that a new trial be awarded. As to the charge of larceny of the Frazier dogs, the judgment is reversed. As to the charge of larceny of the Gunter dogs, a new trial must be awarded.

New trial.

BROCK, C. J., and MORRIS, J., concur.