STATE of North Carolina
v.
Jerry MAINES.
No. 118.
Supreme Court of North Carolina.
January 6, 1981.*293 Rufus L. Edmisten, Atty Gen. by T. Buie Costen, Sp. Deputy Atty. Gen., Raleigh, for the State.
Wade E. Vannoy, Jr., West Jefferson, for defendant appellant.
HUSKINS, Justice:
Denial of his motion for judgment of nonsuit at the close of all the evidence constitutes defendant's sole assignment of error. The assignment turns on whether defendant's possession of stolen goods soon after the breaking and entering and larceny is a circumstance tending to show defendant is guilty of the breaking and entering and larceny. We hold the possession shown in defendant Jerry Maines in this case is insufficient to support a verdict of guilty of the breaking and entering and larceny charged in the bill of indictment. Accordingly, this defendant's nonsuit motion should have been granted.
The State relies, as indeed it must in this case, on the doctrine of recent possession. That 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. State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967); State v. Allison, 265 N.C. 512, 144 S.E.2d 578 (1965). The presumption is strong or weak depending upon the circumstances of the case and the length of time intervening between the larceny of the goods and the discovery of them in defendant's possession. State v. Williams, 219 N.C. 365, 13 S.E.2d 617 (1941). 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. Lewis, 281 N.C. 564, 189 S.E.2d 216, cert. denied 409 U.S. 1046, 93 S.Ct. 547, 34 L.Ed.2d 498 (1972). The presumption or inference arising from recent possession of stolen property "is to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant's guilt." State v. Baker, 213 N.C. 524, 526, 196 S.E. 829, 830 (1938); accord, State v. Greene, 289 N.C. 578, 223 S.E.2d 365 (1976).
Proof of a defendant's recent possession of stolen property, standing alone, does not shift the burden of proof to the defendant. That burden remains on the State to demonstrate defendant's guilt beyond a reasonable doubt. State v. Baker, supra. In order to invoke the presumption that the possessor is the thief, the State must prove beyond a reasonable doubt each fact necessary to give rise to the inference or presumption. When the doctrine of recent possession applies in a particular case, it suffices to repel a motion for nonsuit and defendant's guilt or innocence becomes a jury question.
In summary then, the 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 *294 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).
This case turns upon the second element as outlined above: whether the stolen goods were found in defendant's custody and subject to his control and disposition to the exclusion of others. What amounts to exclusive possession of stolen goods to support an inference of a felonious taking most often turns on the circumstances of the possession. The crucial circumstances of possession in this case are: the goods were found in a car and persons other than defendant were present in the car, including the owner of the vehicle. Both fact situations have been addressed by various courts with varied results. See Annot., 51 A.L. R.3d 727 (1973). The variances in the cases can perhaps be explained by the presence of additional circumstances. When the stolen goods are found in a car in which more than one person is present, the question may narrow to whether the defendant was the owner, driver or mere passenger in the car. In this case Steve Dunn was an owner and passenger in the car and defendant was the driver.
The "exclusive" possession required to support an inference or presumption of guilt need not be a sole possession but may be joint. State v. Holloway, 265 N.C. 581, 144 S.E.2d 634 (1965). If the situation is one where persons other than defendant have equal access to the stolen goods, the inference may not arise. For the inference to arise where more than one person has access to the property in question, the evidence must show the person accused of the theft had complete dominion, which might be shared with others, over the property or other evidence which sufficiently connects the accused person to the crime or a joint possession of co-conspirators or persons acting in concert in which case the possession of one criminal accomplice would be the possession of all. Stated differently, for the inference to arise, the possession in defendant must be to the exclusion of all persons not party to the crime. The State has not shown such a possession in this case. The evidence shows four persons in a car which contains stolen goods. The State has not demonstrated a criminal conspiracy among the four. Only one of them, Steve Dunn, claimed a possessory interest in the stolen goods. Dunn also owned the car.
Defendant did not have actual or personal possession of the stolen property. None of the goods were on his person and he did not make any conscious assertion of ownership as did Dunn. Defendant's possession was at most constructive, based on the fact he was driving the car and presumably in control of it and its contents. Thus, to convict defendant, the jury must infer that defendant possessed the goods from the mere fact of driving with the owner of the car seated beside him and then infer he was the thief who stole them based on the possession of recently stolen goods. We hold this criminal conviction cannot stand because it is based on stacked inferences. "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. Parker, 268 N.C. 258, 262, 150 S.E.2d 428, 431 (1966), quoting Lane v. Bryan, 246 N.C. 108, 112, 97 S.E.2d 411, 413 (1957); accord, State v. Greene, supra.
In order to take the case against defendant Maines to the jury, the State must show something more than was shown here. For example, the State could make a case sufficient to repel nonsuit by evidence of an attempt by defendant as driver to avoid the officer when he approached the car, or evidence that the property is obviously contraband, or some evidence at the crime scene indicating defendant had been there, or evidence of constant association with or customary use of the car by defendant. No *295 legal presumption that defendant was a thief could arise from merely driving the car with the owner present. Contrast State v. Lewis, 281 N.C. 564, 189 S.E.2d 216, cert. den., 409 U.S. 1046, 93 S.Ct. 547, 34 L.Ed.2d 498 (1972).
Under the particular circumstances here, we hold defendant did not have that exclusive possession of the property necessary to justify an inference of guilt. Nonsuit was appropriate. The decision of the Court of Appeals upholding the denial of his motion for nonsuit is
REVERSED.
BROCK, J., took no part in the consideration or decision of this case.