Appeal by defendant from Owens, Judge. Judgments entered 26 September 1980 in Superior Court, Henderson County. Heard in the Court of Appeals 12 October 1981.
Morris, Chief Judge. Judges Arnold and Becton concur.
Defendant first assigns error to the trial court's denial of his motion to dismiss the charges of breaking or entering and larceny. This motion was made at the close of the state's evidence. We initially point out that even though this motion was not renewed at the close of all the evidence, G.S. 15A-1446(d)(5) requires that the sufficiency of the evidence be considered on appeal. We further note that no prejudicial error could have been committed by the court's denial of the defendant's motion to dismiss the breaking or entering charges, because defendant was acquitted of these charges. Our sole task under this assignment of error is then to determine whether the trial court erred in failing to grant the motion to dismiss the larceny charges. The only evidence presented which connects defendant to the alleged crimes of larceny was his possession of the rifle and eight-track tapes. It is, therefore, evident that the state relied upon the doctrine of possession of recently stolen property to prove defendant's guilt. The application of this doctrine, when applied to
a larceny case, raises the presumption of guilt against the possessor of recently stolen property and permits the case to go to the jury. State v. Maines, 301 N.C. 669, 273 S.E.2d 289 (1981). The doctrine applies when the following conditions are met:
(1) That the property described in the indictment was stolen, the mere fact of finding one man's property in another man's possession raising no presumption that the latter stole it; (2) that the property shown to have been possessed by accused was the stolen property; and (3) that the possession was recently after the larceny, since mere possession of stolen property raises no presumption of guilt. (Citations omitted.)
State v. Foster, 268 N.C. 480, 485, 151 S.E.2d 62, 66 (1966). Both condtions (1) and (2) were met. Crystal Lanning testified that she never gave defendant permission to enter the Lanning house and take her tapes. Randy Lanning gave similar testimony regarding his rifle. Each witness also positively identified his or her property. We conclude, however, that condition (3) was not met. In State v. Blackmon, 6 N.C. App. 66, 169 S.E.2d 472 (1969), this Court discussed the circumstances which must be considered in deciding whether this third condition of the doctrine is satisfied:
Whether the time elapsed between the theft and the moment when the defendant is found in possession of the stolen goods is too great for the doctrine to apply depends upon the facts and circumstances of each case. Among the relevant circumstances to be considered is the nature of the particular property involved. Obviously if the stolen article is of a type normally and frequently traded in lawful channels, then only a relatively brief interval of time between the theft and finding a defendant in possession may be sufficient to cause the inference of guilt to fade away entirely. On the other hand, if the stolen article is of a type not normally or frequently traded, then the inference of guilt would survive a longer time interval. In either case the circumstances must be such as to manifest a substantial probability that the stolen goods could only have come into the defendant's possession by his own act, to exclude the intervening agency of others between the theft and the defendant's possession, and to give reasonable assurance that possession could not have been obtained unless the defendant was the thief. State v. Weinstein, 224
N.C. 645, 31 S.E.2d 920; State v. Holbrook, 223 N.C. 622, 27 S.E.2d 725. The question is ordinarily a question of fact for the jury. State v. White, 196 N.C. 1, 144 S.E. 299.
Id. at 76-77, 169 S.E.2d at 479.
In the case at bar the tapes were discovered missing on 5 February 1980. About 19 days later Crystal Lanning saw her tapes in defendant's bedroom. The rifle was discovered missing on 6 March 1980 and found in defendant's closet on the same date. The bills of indictment indicated that the two larcenies were pursuant to a breaking or entering which occurred on or about 5 February 1980. The only evidence supporting this date is the testimony of Becky Lanning that she discovered damage to her latch on her basement door "around the last of January or the first of February." The state in its brief admits that a rifle and tapes are items which are normally and frequently traded in lawful channels. They argue, though, that the items had identifying marks which made them unique; thus presenting an additional factor which strengthens the presumption of guilt. Crystal testified that her name was written on the tapes. Randy testified that his rifle contained a new silver spring. In support of this argument, defendant calls this Court's attention to the facts in Blackmon, supra. Defendant therein was charged with stealing a wrench. "It was a handmade tool, the like of which the mechanic who made it had never seen before or since and which over a period of years he had used only once." 6 N.C. App. at 77, 169 S.E.2d at 479. This wrench was found in defendant's possession 27 days after the alleged breaking and entering and larceny. We held that the doctrine of possession of recently stolen property was properly applied and found no error. Our holding, though, was based upon the uniqueness of the stolen wrench as well as the fingerprint evidence against defendant. This evidence tended to establish defendant's presence at the exact time and place the wrench was stolen. In the case sub judice, the state relies ...