State v. Warren , 35 N.C. App. 468 ( 1978 )

241 S.E.2d 854 (1978)

STATE of North Carolina
v.
Kenny Ray WARREN.

No. 7725SC612.

Court of Appeals of North Carolina.

March 7, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Sandra M. King, Raleigh, for the State.

Patton, Starnes & Thompson, P. A., by Thomas M. Starnes, Morgantown, for defendant-appellant.

PARKER, Judge.

Defendant's first assignment of error was directed to the court's overruling of his objection to the evidence obtained by the search of the van. Defendant did not discuss this assignment of error in his brief. Accordingly, it is deemed abandoned. Rule 28(a), North Carolina Rules of Appellate Procedure.

Defendant assigns error to the denial of his motions for directed verdict made on the grounds that there was insufficient evidence to justify submission of the cases to the jury. There was ample evidence to show that the crimes with which defendant was charged were committed by some one. The only question is whether there was sufficient evidence to show that it was the defendant who committed them. We hold that there was.

"It is the general rule in this State that one found in the unexplained possession of recently stolen property is presumed to be the thief. This is a factual presumption and is strong or weak depending on circumstances—the time between the theft and the possession, the type of property involved, and its legitimate availability in the community." State v. Raynes, 272 N.C. 488, 158 S.E.2d 351; State v. Allison, 265 N.C. 512, 144 S.E.2d 578; Strong, N.C. Index, 2d, Larceny, § 5. To give rise to this presumption, it is not necessary that the stolen property be found actually in the hands of or on the person of the accused, it being sufficient if it was found in a container or place of deposit under his exclusive personal control.

State v. Lewis, 281 N.C. 564, 567, 189 S.E.2d 216, 219 (1972). In addition, where, as in the present case, there is sufficient evidence that a building has been broken into and entered and that property has been stolen therefrom by such breaking and entering, then a presumption of fact arises that one found in the unexplained possession of the stolen property soon after the breaking and entering is guilty both of the larceny of the breaking and entering. State v. Allison, 265 N.C. 512, 144 S.E.2d 578 (1965); State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969). Giving the State the benefit of these factual inferences and viewing the evidence in the light most favorable to the State, we find the evidence in the present case sufficient to carry the cases to the jury.

There was uncontradicted evidence that the Watson and the Hollar homes were broken into, one on 1 September and the other on 10 September 1976, and that a large and varied assortment of furnishings and other articles were stolen after each such breaking and entering. There was uncontradicted evidence that a large number of these articles were assembled in a cache in a white van. As to the goods stolen from the Hollar residence, there was evidence from which the jury could find that this occurred at some time between 6:45 a. m. on 10 September 1976, when Mr. and Mrs. Hollar left their residence to go to work, and "late in the morning" of the same day, which was when the informant stated to the SBI agent that he first saw the van with its cache of stolen goods. (Defense counsel placed this latter information before the jury by his cross-examination of the State's witness, SBI Agent Suttle, the officer to whom the confidential informant gave his report; no motion to strike was made, and the jury was entitled to consider the evidence concerning the confidential informant's statements to Agent Suttle for whatever probative value it might have. Similarly, the court could properly consider this evidence in ruling on the defense motions for directed verdict.) There was evidence that the police maintained a continuous watch over the cache of stolen goods from 5:30 p. m. on the day the Hollar residence was broken into until 2:00 p. m. the next day, when defendant came to the cache, entered the van, and took possession of the van and its contents. He was the first person observed by the police to do so.

Thus, the evidence was sufficient to support a jury finding that defendant had possession of the stolen goods and exercised control over them recently after they had been stolen. Such a finding would in itself support inferences of fact, which the jury might draw, that defendant was the thief and that he had participated in the breakings and enterings by which the goods had been obtained. Evidence that the stolen goods cached in the van were not in defendant's actual possession for a portion of the time after the last breaking and entering would not destroy the inferences which the jury might legitimately draw from defendant's subsequent possession of the recently stolen goods.

In contending that the inferences should not be permitted in the present case, defendant's counsel calls attention to the following statement in State v. Patterson, 78 N.C. 470, 472-73 (1878);

The possession of stolen property recently after the theft, and under circumstances excluding the intervening agency of others, affords presumptive evidence that the person in possession is himself the thief, and the evidence is stronger or weaker, as the possession is nearer to or more distant from the time of the commission of the offense.

He stresses the portion of the quoted statement referring to "circumstances excluding the intervening agency of others," and he calls attention to similar statements in later cases. Relying on this formulation of the so-called "doctrine of recent possession," he contends that the circumstances of the present case do not exclude the intervening agency of others and for that reason the inferences should not be permitted in this case. We point out, however, that in no case in which the doctrine is invoked will the evidence completely and positively exclude the possibility of "the intervening agency of others." Evidence to that effect would make it unnecessary to invoke the doctrine. By its very nature, the doctrine is useful only when the defendant's guilt cannot be established by direct evidence of his presence at the scene of the crime and of his participation therein. Thus, where the doctrine is invoked, there must always be a slight gap in the State's evidence failing to completely account for the possession of the stolen goods at every moment between the actual commission of the crime and the discovery of the goods in a defendant's possession, thereby making it impossible to completely exclude the possibility of some intervening agency.

We think the more accurate formulation of the doctrine is that contained in State v. Jackson, 274 N.C. 594, 597, 164 S.E.2d 369, 370 (1968):

Evidence or inference of guilt arising from the unexplained possession of recently stolen property is strong, or weak, or fades out entirely, on the basis of the time interval between the theft and the possession. . . . The possession, in point of time, should be so close to the theft as to render it unlikely that the possessor could have acquired the property honestly. (Emphasis added.)

Other evidence in the present case lends support to the inferences arising from defendant's possession of the recently stolen property. There was evidence that the van had been in defendant's possession as early as 1 September 1976, the date of the break-in of the Watson residence, and that he may have continued to maintain control over it to 10 September 1976, the date of the break-in of the Hollar residence. Admittedly, this evidence does not exclude the possibility of the intervening agency of others, but it tends to negate that possibility and it supports the inference that defendant was the thief. Whether the evidence showed defendant guilty beyond a reasonable doubt was for the jury to determine; all that the court was called upon to determine was whether it was sufficient to take the cases to the jury. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). We agree with the trial court that it was.

Defendant assigns error to the court's rulings sustaining the district attorney's objections to questions directed by defense counsel during cross-examination of the SBI agent regarding the identity of the confidential informant. The prosecution is privileged to withhold the identity of an informant unless the informant was a participant in the crime or unless the informant's identity and testimony are essential to a fair determination of the case or are material to a defendant's defense. State v. Ketchie, 286 N.C. 387, 211 S.E.2d 207 (1975); State v. Brown, 29 N.C.App. 409, 224 S.E.2d 193 (1976); State v. Parks, 28 N.C.App. 20, 220 S.E.2d 382 (1975). In the present case the court conducted a voir dire examination of the SBI agent concerning his confidential informant. During this examination the agent testified that he did not have any information that his informant participated in or witnessed either of the break-ins involved in this case nor did the agent have any reason to suspect that he did. The agent also testified that he had no reason to suspect that his informant had driven the van. On this record there is no showing of defendant's need for disclosure of the informant's identity, and we find no error in the Court's refusal to require the disclosure.

The only other assignment of error brought forward in defendant's brief relates to the Court's instructions to the jury defining and applying the "doctrine of recent possession." We have carefully examined the charge and find that the court correctly and adequately applied the law arising on the evidence in this case. In defendant's trial and in the judgments entered we find

No Error.

BRITT and VAUGHN, JJ., concur.