State v. Maines

MARTIN (Robert M.), Judge.

Defendants argue the court erred in denying their motions to dismiss at the close of the evidence.

The State relied on the doctrine of possession of recently stolen property. Possession .of stolen property shortly after the *168time of the theft raises an inference of the possessor’s guilt of the larceny as well as of the breaking and entering necessary to gain access to the property, which is then submitted to the jury along with other evidence for its determination of guilt. State v. Fair, 291 N.C. 171, 229 S.E. 2d 189 (1976). The circumstances under which the doctrine may be applied were enumerated in State v. Fair as follows: (1) that the property described in the indictment was stolen, (2) that the property shown to have been possessed by defendant was the stolen property, and (3) that the possession was recently after the larceny.

The first condition is satisfied by Mrs. Milam’s testimony as to the break-in of her building and her positive identification of the coat described in the indictment. Although Mrs. Milam could not specifically identify the other items listed in the indictment as being her property, the general verdict of guilty which was returned by the j ury will stand as being presumed to relate only to the felonious larceny of the identified coat. State v. Foster, 268 N.C. 480, 151 S.E. 2d 62 (1966).

The requirement of the second condition of the doctrine is met by the testimony which established defendant Maines as the driver of the car containing the stolen property and defendant Dunn as owner of the car and being present in the front passenger seat. As to defendant Maines, one who has the power to control and intent to control the access to and use of a vehicle is presumed to also have possession of the known contents of that vehicle. State v. Eppley, 282 N.C. 249, 192 S.E. 2d 441 (1972). As to defendant Dunn, his possession of the stolen goods is implied by his ownership of the vehicle, his presence in the vehicle, and his exercise of authority over the vehicle in consenting to its search by the police officers. State v. Lewis, 281 N.C. 564, 189 S.E. 2d 216, cert. denied, 409 U.S. 1046, 34 L. Ed. 2d 498, 93 S.Ct. 547 (1972). The above facts which imply possession by the defendants are merely to be considered by the jury along with other evidence but they do justify the denial of defendants’ motions for nonsuit. State v. Earley, 38 N.C. App. 361, 247 S.E. 2d 796 (1978).

As to the final condition, the goods were taken sometime between 9:00 p.m. on 5 July 1979 and the morning of 6 July 1979; *169defendants were apprehended around 10:25 p.m. on 7 July 1979, a maximum time lapse of 491/2 hours. The facts and circumstances of each case determine whether the lapse of time between the theft of the goods and when the defendant is found in possession of the goods is too great to allow the doctrine to apply. If the stolen property is of a type not normally or frequently found in commerce, then a longer time inference will be sustained. State v. Blackmon, 6 N.C. App. 66, 169 S.E. 2d 472 (1969). We conclude that the possession of Mrs. Milam’s coat by the defendants was sufficiently recent after its theft to permit application of the doctrine of possession of recently stolen property. See State v. Jolley, 262 N.C. 603, 138 S.E. 2d 212 (1964) (per curiam).

In the defendants’ trial we find

No error.

Judge Martin (Harry C.) concurs. Judge Hedrick concurs in part and dissents in part.