State v. Locklear

PHILLIPS, Judge.

By his first assignment of error defendant contends that the trial court erred in denying his motion to suppress the evidence seized from his pickup truck following his arrest for possessing burglary tools. The question raised is whether the arrest, which was the basis for the search, was without probable cause in violation of the Fourth Amendment of the United States Constitution. Probable cause to arrest a person requires circumstances sufficient to cause a reasonable and prudent law enforcement officer to believe in good faith that a crime is being or has been committed and that the person arrested is the offender. State v. Streeter, 283 N.C. 203, 195 S.E. 2d 502 (1973). We believe, as the trial judge held, that there was probable cause to arrest the defendant for possession of burglary tools and this assignment is overruled. Defendant’s presence behind the closed grocery store in the dark of night with a truck; the pry-marks on the store’s rear door indicating a possible break-in; the frozen meat in the truck bed stamped with the apparent lot number of a cold storage market; along with the implements suitable for accomplishing a burglary in the front of the truck combined to indicate that defendant unlawfully possessed burglary tools and had recently used them.

By his only other assignment of error defendant contends that the trial court committed prejudicial error by refusing to charge as he requested on the doctrine of recent possession. In instructing the jury on this doctrine the court in pertinent part stated that for the doctrine to apply the State had to prove beyond a reasonable doubt: (1) That property allegedly stolen was stolen; (2) that the defendant was in possession of that same property; and (3) “that the defendant had possession of this same property so soon after it was stolen and under such circumstances as to make it unlikely that he obtained possession honestly.” This instruction, which tracks Crim. Sec. 104.40 of the North Carolina Pattern Jury Instructions (1977), was approved by this Court in State v. O’Kelly, 20 N.C. App. 661, 202 S.E. 2d 482, rev’d, on other grounds, 285 N.C. 368, 204 S.E. 2d 672 (1974), on the authority of State v. Jackson, 274 N.C. 594, 164 S.E. 2d 369 (1968), and various other decisions cited therein. The modification that defendant requested in lieu of the phrase “as to make it unlikely that he obtained possession honestly” would have instructed the jury that:

And third, that the defendant had possession of this property so soon after it was stolen and under such circumstances as to make it unlikely that he obtained possession by any other way than by committing the offenses of breaking or entering and larceny with which he is charged.

While the “honestly obtained” part of the charge that was given is neither a helpful nor a necessary accretion to the doctrine of recent possession — the effect and purpose of which is to prove not that a defendant obtained goods dishonestly but that he stole them —which should be eliminated from the pattern instructions, in our opinion, in the context of this case we do not believe that the defendant was prejudiced by it. And though defendant’s requested instruction could have been properly given, we do not believe that the court’s failure to give it affected the outcome of the case.

No error.

Judges Wells and Whichard concur.