State v. Hamlet

WELLS, Judge.

Defendant makes a single argument on this appeal: that the breaking or entering and larceny convictions must be reversed because the state relied entirely on the doctrine of recent possession to support these convictions, and there was no direct evidence of recent possession.

The doctrine of recent possession:

[I]s 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. . . . Furthermore, when there is sufficient evidence that a building has been broken into and entered and thereby the property in question has been stolen, the possession of such stolen property recently after the larceny raises presumptions that the possessor is guilty of the larceny and also of the breaking and entering. . . .

State v. Maines, 301 N.C. 669, 273 S.E. 2d 289 (1981). The presumption is strong or weak depending upon the circumstances of the case and the length of time intervening between the larceny and the discovery of the goods; the presumption is an evidential fact to be considered by the jury along with other evidence in the case. Id. The presumption arises only when the state proves beyond a reasonable doubt that (1) the property was stolen, (2) that it was found in the defendant’s exclusive control and custody, or that defendant had the power and intent to control the goods, and (3) the possession was recently after the larceny. Id.

Applying this three-part test to the facts, we find that, first, defendant concedes that the property was stolen. Second, although defendant contends otherwise, we find the facts sufficient to support the element of defendant’s exclusive possession of the stolen goods. Defendant admitted to the sheriffs detective that he was the owner of the goods, and although he testified at trial that Johnson told him to claim ownership, the undisputed evidence shows that defendant carried the television and other items into his trailer, and that defendant personally sold the television to Jerry Hamby the following day. See State v. Maines, supra (what constitutes exclusive possession generally turns on circumstances of possession).

The question remains, however, whether the state’s evidence demonstrated that the property had been recently stolen. The term “recent” is a relative one, dependent on pertinent circumstances of the individual case, State v. Holbrook, 223 N.C. 622, 27 S.E. 2d 725 (1943), which circumstances include the length of time between the theft and the possession, the type of property involved and its legitimate availability in the community, ie., whether it is a type normally and frequently traded in lawful channels. State v. Blackmon, 6 N.C. App. 66, 169 S.E. 2d 472 (1969), compare State v. Parker, 54 N.C. App. 522, 284 S.E. 2d 132 (1981). The evidence showing defendant’s sale of a valuable television almost immediately after it was discovered in his possession, the evidence from which the inference could be drawn that the theft of the television was recent, and the evidence connecting Mrs. Johnson’s car to the premises at which the theft occurred was sufficient to show that the stolen property was recently stolen.

We find no error in the trial below

No error.

Judge WHICHARD concurs. Judge BECTON dissents.