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The Doctrine of Recent Possession

Recently a caller asked: Does the fact that the defendant was found in possession of goods five days after they were stolen create an inference that he stole them? The answer: It depends.

As I discuss in my book, North Carolina Crimes, the doctrine of recent possession permits an inference of guilt based on a defendant’s possession of stolen property recently after a larceny or breaking and entering. State v. Maines, 301 N.C. 669 (1981); State v. Gonzalez, 311 N.C. 80 (1984); State v. Ethridge, 168 N.C. App. 359 (2005); State v. McQueen, 165 N.C. App. 454 (2004); State v. Mitchell, 109 N.C. App. 222 (1993). In order for the inference to apply, the evidence must show that:

(1)        the property was stolen,

(2)        the stolen goods were found in the defendant’s custody and subject to his or her control and disposition to the exclusion of others, and

(3)        the defendant had possession of the property recently after it was stolen.

Maines, 301 N.C. 669; Gonzalez, 311 N.C. 80; Ethridge, 168 N.C. App. 359; McQueen, 165 N.C. App. 454; State v. Earwood, 155 N.C. App. 698 (2003).

The first prong of the test requires that the property be identified as stolen. State v. Carter, 122 N.C. App. 332 (1996). In one case, the doctrine was held not to apply when the owner could not positively identify the goods (tires) as the stolen items because they were mass produced and had no individual identifying characteristics. State v. Foster, 268 N.C. 480 (1966).

The second prong requires that the stolen property is found in the defendant’s custody and possession or subject to his or her control and disposition. State v. Wilson, 313 N.C. 516 (1985); State v. Hamlet, 316 N.C. 41 (1986). Proof of either actual or constructive possession will suffice. Maines, 301 N.C. 669; Wilson, 313 N.C. 516; State v. Osborne, 149 N.C. App. 235 (2002). Actual possession could be, for example, the defendant having the items on his or her person. State v. Reid, 151 N.C. App. 379 (2002) (goods were in a briefcase carried by defendant). Constructive possession could be, for example, the defendant keeping the items in a locked facility. Foster, 268 N.C. 480; Maines, 301 N.C. 669. Joint possession can satisfy this prong of the doctrine. Maines, 301 N.C. 669. For the inference of guilt to arise in a case of joint possession, the possession must be to the exclusion of all persons not party to the crime. Id.; State v. Osborne, 149 N.C. App. 235 (2002); State v. Foster, 149 N.C. App. 206 (2002); State v. Sluka, 107 N.C. App. 200 (1992). Thus, the defendant possessed stolen property when the stolen items were found in a truck driven by the defendant and the two other passengers in the truck were parties to the crime. Foster, 149 N.C. App. 206 (2002). By contrast, the evidence was insufficient when the defendant was found, along with three other individuals, in a car containing stolen goods but no criminal conspiracy was shown among the four. Maines, 301 N.C. 669.

The third prong of the doctrine requires that the defendant had possession of the property recently after it was stolen. There are no firm rules about how soon the defendant must come into possession of the property. State v. Wilson, 313 N.C. 516 (1985); State v. Patterson, 194 N.C. App. 608, 619 (2009) (“no bright line rule”). The general rule, however, is that the time between the theft and the possession must be close enough to make it unlikely that the possessor could have acquired the property honestly. State v. Jackson, 274 N.C. 594 (1968); State v. Hamlet, 316 N.C. 41 (1986); State v. Friend, 164 N.C. App. 430 (2004). Thus, for example, evidence supported application of the doctrine when (1) a video camera was found in the defendant’s possession 21 days after a break-in, Patterson, 194 N.C. App. at 620–21; (2) the contents of a robbery victim’s purse were found in the defendant’s possession within 24 hours after the robbery, State v. Reid, 151 N.C. App. 379 (2002); (3) within several days of a number of larcenies from nearby houses, stolen articles were found in the defendants’ home, State v. Eppley, 282 N.C. 249 (1972); and (4) the victim’s stolen address book was seen in the defendant’s car three days after the larceny, State v. Pickard, 143 N.C. App. 485 (2001).

If the stolen property is a type normally and commonly traded in lawful channels, a relatively brief time interval between the theft and the finding of an accused in possession is required. Hamlet, 316 N.C. 41; State v. McQueen, 165 N.C. App. 454 (2004). Thus, the doctrine was inapplicable when a defendant was found in possession of eight-track tapes 19 days after they were stolen and a rifle 30 days after it was stolen and the State conceded that both items are frequently traded in normal channels. State v. Parker, 54 N.C. App. 522 (1981); see also Hamlet, 316 N.C. at 45–46 (possession after 30 days was insufficient to invoke doctrine given that the items were normally and frequently traded in lawful channels). When the item is not normally or commonly traded in lawful channels, the doctrine may apply after the passage of a longer period of time between the larceny and the defendant’s possession. Hamlet, 316 N.C. 41; McQueen, 165 N.C. App. 454. For example, the doctrine applied when (1) the defendant possessed a unique tool not generally traded in his community 27 days after it was stolen and fingerprint evidence tied the defendant to the theft, State v. Blackmon, 6 N.C. App. 66 (1969); (2) the defendant or his girlfriend possessed a stolen watch up to four weeks after it was stolen, State v. Wilson, 313 N.C. 516, 536–37 (1985); and (3) the defendant possessed commercial restaurant equipment 11─12 days after it had been stolen, State v. Callahan, 83 N.C. App. 323 (1986).