State v. Voncannon , 302 N.C. 619 ( 1981 )

276 S.E.2d 370 (1981)

STATE of North Carolina
v.
James Curtis VONCANNON.

No. 29.

Supreme Court of North Carolina.

April 7, 1981.

Rufus L. Edmisten, Atty. Gen. by John R. B. Matthis, Sp. Deputy Atty. Gen., and Acie L. Ward, Asst. Atty. Gen., Raleigh, for the State.

Joe D. Floyd and David K. Rosenblutt, High Point, for defendant.

BRANCH, Chief Justice.

Defendant first contends that the Court of Appeals erred by affirming the trial judge's denial of defendant's motion to dismiss. The State relied exclusively on the doctrine of recent possession of stolen goods. Defendant, however, argues that the record contains no direct evidence of possession by defendant. He concludes that the doctrine of recent possession cannot be the basis of a conviction of larceny without direct evidence of possession by defendant.

The State admits that the record contains no direct evidence that defendant possessed the tractor. It argues, however, that it introduced sufficient circumstantial evidence of possession to trigger the doctrine of recent possession. Since the Yorks never saw the mysterious man on the tractor, the State contends, the jury could reasonably infer defendant possessed and controlled the tractor despite defendant's version of events.

We recently dealt with a similar issue in State v. Maines, 301 N.C. 669, 273 S.E.2d 289 (1981). In that case, we recited the law of the doctrine of recent possession:

[The] doctrine is simply a rule of law that, upon an indictment for larceny, possession of recently stolen property raises a presumption of the possessor's guilt of the larceny of such property.

* * * * * *

[T]he presumption spawned by possession of recently stolen property arises when, and only when, the State shows beyond a reasonable doubt: (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; State v. Eppley, 282 N.C. 249, 192 S.E.2d 441 (1972); State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966); State v. Turner, 238 N.C. 411, 77 S.E.2d 782 (1953); State v. Epps, 223 N.C. 741, 28 S.E.2d 219 (1943); and (3) the possession was recently after the larceny, mere possession of stolen property being insufficient to raise a presumption of guilt. State v. Jackson, 274 N.C. 594, 164 S.E.2d 369 (1968).

The possession sufficient to give rise to such inference does not require that the defendant have the article in his hand, on his person or under his touch. It is sufficient that he be in such physical proximity to it that he has the power to control it to the exclusion of others and that he has the intent to control it. One who has the requisite power to control and intent to control access to and use of a vehicle or a house has also the possession of the known contents thereof.

State v. Eppley, supra, 282 N.C. at 254, 192 S.E.2d at 445 (citations omitted).

Id. at 674, 273 S.E.2d at 293-94.

In Maines we also reiterated the prohibition against convicting a defendant on the basis of "stacked inferences." The State in Maines presented no direct evidence of the defendant's possession of the stolen goods; it relied solely on the inference of possession from the fact that the defendant was driving the car, owned by another, in which the stolen goods were found. We concluded that the conviction was improper because to permit conviction would have been to allow the inference of guilt based on recent possession to be stacked on the inference of possession based on the control of the car. Quoting State v. Parker, 268 N.C. 258, 262, 150 S.E.2d 428, 431 (1966), we said,

Inference may not be based on inference. Every inference must stand upon some clear or direct evidence, and not upon some other inference or presumption. State v. Maines, supra, at 674, 273 S.E.2d at 294.

In this case, the facts present the same legal situation in a different context. Nevertheless, here as in Maines, evidence of defendant's possession was at most circumstantial based on the fact that he asked his brother-in-law to permit an unnamed person to park the tractor on his brother-in-law's premises. To convict defendant the jury would have to infer that defendant was in possession of the tractor and then infer that he was the person who stole the tractor based on the inferred possession. Thus, the State was permitted to build its case by stacking the inference of guilt based upon the doctrine of recent possession on top of the inference of possession based on circumstantial evidence.

Considering the complete lack of any direct evidence tending either to connect defendant with the crime or to show him in possession of the stolen property, we hold that the possession shown in defendant is insufficient to support a verdict of guilty of the larceny charged in the bill of indictment. Nonsuit was therefore appropriate. The decision of the Court of Appeals upholding the denial of defendant's motion for nonsuit is

REVERSED.