State v. Warren, 7725SC612

• Decision Date: 07 March 1978
• Docket Number: No. 7725SC612,7725SC612
• Citation: 35 N.C.App. 468,241 S.E.2d 854
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Kenny Ray WARREN.

Page 854

241 S.E.2d 854

35 N.C.App. 468

STATE of North Carolina v. Kenny Ray WARREN.

No. 7725SC612.

Court of Appeals of North Carolina.

March 7, 1978.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Sandra M. King, Raleigh, for the State.

Patton, Starnes & Thompson, P. A., by Thomas M. Starnes, Morgantown, for defendant-appellant.

PARKER, Judge.

Defendant's first assignment of error was directed to the court's overruling of his objection to the evidence obtained by the search of the van. Defendant did not discuss this assignment of error in his brief. Accordingly, it is deemed abandoned. Rule 28(a), North Carolina Rules of Appellate Procedure.

Defendant assigns error to the denial of his motions for directed verdict made on the grounds that there was insufficient evidence to justify submission of the cases to the jury. There was ample evidence to show that the crimes with which defendant was charged were committed by some one. The only question is whether there was sufficient evidence to show that it was the defendant who committed them. We hold that there was.

"It is the general rule in this State that one found in the unexplained possession of recently stolen property is presumed to be the thief. This is a factual presumption and is strong or weak depending on circumstances the time between the theft and the possession, the type of property involved, and its legitimate availability in the community." State v. Raynes, 272 N.C. 488, 158 S.E.2d 351; State v. Allison, 265 N.C. 512, 144 S.E.2d 578; Strong, N.C. Index, 2d, Larceny, § 5. To give rise to this presumption, it is not necessary that the stolen property be found actually in the hands of or on the person of the accused, it being sufficient if it was found in a container or place of deposit under his exclusive personal control.

State v. Lewis, 281 N.C. 564, 567, 189 S.E.2d 216, 219 (1972). In addition, where, as in the present case, there is sufficient evidence that a building has been broken into and entered and that property has been stolen therefrom by such breaking and entering, then a presumption of fact arises that one found in the unexplained possession of the stolen property soon after the breaking and entering is guilty both of the larceny of the breaking and entering. State v. Allison, 265 N.C. 512, 144 S.E.2d 578 (1965); State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969). Giving the State the benefit of these factual inferences and viewing the evidence in the light most favorable to the State, we find the evidence in the present case sufficient to carry the cases to the jury.

There was uncontradicted evidence that the Watson and the Hollar homes were broken into, one on 1 September and the other on 10 September 1976, and that a large and varied assortment of furnishings and other articles were stolen after each such breaking and entering. There was uncontradicted evidence that a large number of these articles were assembled in a cache in a white van. As to the goods stolen from the Hollar residence, there was evidence from which the jury could find that this occurred at some time between 6:45 a. m. on 10 September 1976, when Mr. and Mrs. Hollar left their residence to go to work, and "late in the morning" of the same day, which was when the informant stated to the SBI agent that he first saw the van with its cache of stolen goods. (Defense counsel placed this latter information before the jury by his cross-examination of the State's witness, SBI Agent Suttle, the officer to whom the confidential informant gave his report; no motion to strike was made, and the jury was entitled to consider the evidence concerning the confidential informant's statements to Agent Suttle for whatever probative value it might have. Similarly, the court could properly consider this evidence in ruling on the defense motions for directed verdict.) There was evidence that the police maintained a continuous watch over the cache of stolen goods from 5:30 p. m. on the day the Hollar residence was broken into until 2:00 p. m. the next day, when defendant came to the cache, entered the van, and took possession of the van and its contents. He was the first person observed by the police to do so.

Thus, the evidence was sufficient to support a jury finding that defendant had possession of the stolen goods and exercised control over them recently after they had been stolen. Such a finding would in itself support inferences of fact, which the jury might draw, that defendant was the thief and that he had participated in the breakings and enterings by which the goods had been obtained. Evidence that the stolen goods cached in the van were not in defendant's actual possession for a portion of the time after the last breaking and entering would not destroy the inferences which the jury might legitimately draw from defendant's subsequent possession of the recently stolen goods.

In contending that the inferences should not be permitted in the present case, defendant's counsel calls attention to the following statement in State v. Patterson, 78 N.C. 470, 472-73 (1878);

The possession of stolen property recently after the theft, and under circumstances excluding the...