                 IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 161A18

                                Filed 16 August 2019

STATE OF NORTH CAROLINA

                v.

MOLLIE ELIZABETH B. McDANIEL


      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 817 S.E.2d 6 (N.C. Ct. App. 2018), vacating defendant’s

convictions on appeal from judgments entered on 24 January 2017 by Judge J.

Thomas Davis in Superior Court, McDowell County. Heard in the Supreme Court on

8 April 2019.


      Joshua H. Stein, Attorney General, by Deborah M. Greene, Assistant Attorney
      General, and Lauren Lewis Ikpe, Assistant Attorney General, for the State-
      appellant.

      Gilda C. Rodriguez for defendant-appellee.


      MORGAN, Justice.


      This appeal by the State of North Carolina, which comes to this Court on the

basis of a dissenting opinion which was issued in the disposition of this case by the

North Carolina Court of Appeals, requires consideration of the doctrine of recent

possession and its utilization here to prove the charges of breaking and entering and

the charge of larceny. In the appellate court below, the majority and the dissent

disagreed on the issue of whether the State presented sufficient evidence to establish
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                                    Opinion of the Court



that defendant in this case actually possessed the allegedly stolen property pursuant

to the cited legal doctrine in order to survive a motion to dismiss. In light of our

conclusion that the evidence presented at trial concerning defendant’s possession of

goods was sufficient to support defendant’s conviction under the doctrine of recent

possession, we reverse the Court of Appeals’ decision and remand the case for

consideration of defendant’s arguments not addressed therein.


                     Factual Background and Procedural History


       The charges in this matter arose from at least two apparent break-ins and

thefts of items from an unoccupied house located at 30 Woody Street in Marion.

Daniel Patrick Sheline, Sr. had inherited the three-bedroom house and a trailer on

five acres of land upon his father’s death in February 2014. Sheline lived in Black

Mountain and neither he nor anyone else resided at the 30 Woody Street address

after his father’s death. On 20 March 2014, Sheline spent time at 30 Woody Street,

sorting through the personal property that had belonged to his father and to Sheline’s

deceased brother. Sheline had paid particular attention to the items in the house on

that date, forming a “sort of . . . inventory in [his] mind” of the items inside the house,

including those stored in the basement. When Sheline left the house, he engaged the

lock on the knob of the front door, but did not employ the deadbolt lock. Sheline

secured the basement door from the inside of the house by inserting a screwdriver

through a padlock such that the door could not be opened from the outside. The only


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other door entering the house, which was located on the side of the building, had been

nailed shut. Sheline had not given anyone permission to enter 30 Woody Street or to

remove any items from the property.


      On 1 April 2014, Sheline returned to 30 Woody Street, accompanied by his wife

on this occasion. He discovered that someone had tampered with the front door,

because its deadbolt lock was now engaged. Sheline further found that the basement

door was ajar, the padlock that had secured the basement door was missing, and an

adjacent window had been pried open. A number of items were missing from the

house, including a monitor heater, copper tubing, an aluminum ladder, a lawnmower,

and a cuckoo clock, as well as electrical wiring and various plumbing fixtures.

Sheline’s wife reported the theft to the McDowell County Sheriff’s Office (“MCSO”).

Lieutenant Detective Andy Manis of the MCSO initiated an investigation. On 2 April

2014, Manis’s captain received a tip that some of the property which had been

removed from 30 Woody Street could be found at a house located at 24 Ridge Street

in Marion, about a quarter of a mile from 30 Woody Street. In following up on the

tip, Manis went to 24 Ridge Street and discovered outside of the house a monitor

heater, some copper tubing, an aluminum ladder, a lawnmower, pipes, and wiring.

Sheline subsequently identified the items as those which were taken from 30 Woody

Street. When Manis knocked on the door of 24 Ridge Street, a woman who identified

herself as Stephanie Rice answered and reported that two people in a white Chevrolet

pickup truck with an extended cab had unloaded the items earlier that day.

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Following this phase of the investigation, warrants were issued for defendant Mollie

Elizabeth B. McDaniel and Michael Nichols in connection with the 2 April break-in

and theft at 30 Woody Street.


      On 4 April 2014, MCSO Detective Jason Grindstaff received a report that an

unauthorized person had again entered the house at 30 Woody Street and was seen

departing that location in a white pickup truck that turned onto Ridge Street.

Grindstaff drove to 24 Ridge Street and saw defendant sitting in the driver’s seat of

a white pickup truck which was parked in the driveway of the house located across

the street from the 24 Ridge Street address. Defendant gave Grindstaff permission

to search the truck, and Grindstaff discovered an Atari gaming system, glassware,

china, and an antique clock radio in the bed of the vehicle. Grindstaff then arrested

defendant, who was subsequently charged with one count of felonious breaking and

entering and one count of felonious larceny based upon events that allegedly occurred

on or about 20 March 2014, and one count of felonious breaking and entering and one

count of felonious larceny based upon events that allegedly occurred on or about 4

April 2014.


      The charges arising from the events of 20 March and 4 April 2014 were joined

for trial. Sheline, Manis, and Grindstaff testified at trial to the facts recounted above.

In addition, Grindstaff testified that defendant had admitted to him that she had

taken the property which was found in the white pickup truck at the time of her


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arrest from a house on Woody Street, but defendant claimed that she had permission

to remove the property. Grindstaff further testified that defendant told Grindstaff

that Michael Nichols had asked her to help remove items from the house at 30 Woody

Street after an unidentified neighbor had given Nichols permission to enter the

premises.


      At the close of the State’s evidence, defendant entered a general motion to

dismiss all of the charges which arose from the alleged 20 March 2014 and 4 April

2014 occurrences. While defendant did not offer any legal argument in support of her

dismissal motion, defendant emphasized her position on the dismissal of the 20

March charges. After a brief discussion, the trial court agreed with defendant and

allowed the motion to dismiss the 20 March charges, reasoning as follows:


                    I don’t see any connection between being across the
             street except in the proximity of it.

                    As to the file number 14 CRS 50512, which is the
             indictment from March 20, 2014, which based on the
             evidence is the first breaking and entering and larceny, the
             Court is going to allow your motion. As to the other one on
             April 4, 2014, which is file 14 CRS 50509, the Court is going
             to deny your motion there. You basically got an admission
             that she went to the house and got that stuff out of that
             house. You have problems with that one.

After a recess for lunch, the trial court expressed confusion about its previous decision

regarding defendant’s motion to dismiss:




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       THE COURT: Let’s go back to this motion for
directed verdict. Let me go back and revisit that a little
bit. The way I see the evidence is [that] we have got
evidence of one breaking and entering, then we have this
defendant with the property at a particular time with an
admission that she went in there and took some of that
property. I’m not sure—I may have dismissed the wrong
one because basically what it comes down to is you have
one breaking and entering. The one I dismissed was
alleged on April 4.

       [DEFENSE COUNSEL]: I thought you dismissed
the other one.

       THE COURT: I did dismiss the other one, but what
I am telling you is I may have gotten them backwards. I
should have dismissed the April 4 one and left the March
20 one in place based on this evidence. I want to make sure
I have time to correct that since nothing has happened at
this point in time.

       I want to revisit that, but I want to see—I
understand your continuing evidence of two breaking and
enterings. The way I see it is the only testimony as to
opening the window, the door, all the situations are from
one incidence. We don’t have any testimony there was any
sort of entry that second time, and that admission that she
makes was not peculiar to [when].

       The evidence that you brought out about somebody
reported seeing the car, I think all that does is goes to the
state of mind of this officer. I think it’s only offered for that
purpose. If it’s offered for any other purpose I think it
would violate the hearsay rule. I think that’s the only
reason it comes in; therefore, it cannot be used as
substantive evidence of any particular crime.

      As a result thereof, I may have dismissed—by
dismissing the April 4 allegation, I am basically—I may
have committed error to the State because that’s the later
one, and it would be hard for you to relate the original



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             breaking and entering that was testified to today to that
             indictment because it was the wrong date.

                    I may have [dis]missed the wrong one. I want to
             hear from you, at least from that analysis, what your
             position is. I can correct it right now without any prejudice
             to the defendant. I was thinking it over through lunch and
             I may have dismissed the wrong one.

After an extended exchange with the prosecutor and defense counsel, the trial court

resolved the motions to dismiss as follows:


                   So that dismissal is stricken. So the indictment in
             14 CRS 50512 as to the allegations of the March 20, 2014,
             on or about that date, is still in place both as to the
             breaking and entering and as to the larceny.

                    Now, as to the other file, which is file number 50509,
             the Court believes the only evidence that’s been produced
             by the State—that there has not been substantial evidence
             shown of two breaking and enterings. There has only been
             substantial evidence as to one breaking and entering. I am
             relating that to the March 20, 2014 indictment.

                    Therefore, the breaking and entering charge in the
             indictment in File No. 14 CRS 50509 is dismissed. But the
             second count, larceny after breaking and entering, there is
             evidence to show that that stuff was acquired as a result of
             the original breaking and entering, that there was evidence
             to show, so the Court is not dismissing that larceny charge.
             The jury will just have to consider these two larcenies
             separately. If the jury comes back and finds her guilty of
             both larcenies, the Court would have to entertain whether
             or not arrested judgment would be appropriate to combine
             those larcenies into that single larceny, but that may
             depend on some of the evidence that comes out here in the
             second part of this case.




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                                   Opinion of the Court



      After this reconsideration by the trial court of its decision to grant defendant’s

motion to dismiss the 20 March 2014 charges of one count of felonious breaking and

entering and one count of felonious larceny and its denial of defendant’s motion to

dismiss the 4 April 2014 charges of one count of felonious breaking and entering and

one count of felonious larceny, the trial court changed its rulings. At this stage in the

proceedings, the trial court struck its previous dismissals and restored both of the 20

March 2014 charges, hence denying defendant’s motion to dismiss those charges;

however, with regard to the 4 April 2014 charges, the trial court allowed defendant’s

motion to dismiss the felonious breaking and entering charge and denied defendant’s

motion to dismiss the felonious larceny charge.


      Defendant testified that in October 2013 she was doing salvage work at an old

abandoned house at 50 Woody Street with her friend Michael Nichols and that she

and Nichols had visited the house next door at 30 Woody Street. Defendant stated

that “an elderly gentleman” answered the door at 30 Woody Street and allowed

defendant and Nichols to remove scrap metal and a plow from the home’s basement.

Defendant explained that she had stopped working at 50 Woody Street in November

or December 2013 because she felt that Nichols was “shirking” and leaving most of

the work to her. Defendant testified that after her unemployment benefits which she

had been collecting from the termination of a previous job ran out, she contacted

Nichols to work with him again.



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                                  Opinion of the Court



      Defendant further testified that on 2 April 2014, at Nichols’ request, defendant

drove Nichols to the house at 50 Woody Street, where the two “loaded some stuff on

[defendant’s] truck.” Defendant stated that Nichols told her that the items stored

outside and underneath the house at 50 Woody Street belonged to a friend of Nichols.

Defendant explained that she performed salvage work at 50 Woody Street alone on 3

April, and that she returned to the house on 4 April after Nichols told her that she

could “look around and see if there [was] anything [defendant] might be interested

in.” Defendant stated that she took various items from the attic of 50 Woody Street

and put them in the bed of her pickup truck. Defendant said she then drove to

Nichols’ home at 24 Ridge Street and parked across the street, only to see Nichols

and another man driving away after loading aluminum cans into the vehicle. At this

point, Detective Grindstaff arrived on the scene.


      Defendant testified that when Grindstaff asked her, “You have been up there

at that house, haven’t you? I said, Yes.” Defendant explained that she later realized

that the detective misunderstood her admission to be a reference to the house at 30

Woody Street, while defendant had been referring to the house next door at 50 Woody

Street. Defendant insisted in her testimony that she had not been to 30 Woody Street

since October 2013 and had believed that, on that occasion, she and Nichols had

permission to remove the plow and other items from 30 Woody Street at that time.

Defendant further testified that she believed that she had permission to remove the



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                                  Opinion of the Court



various items of property from 50 Woody Street in April 2014, including the goods

that Grindstaff discovered in the bed of her pickup truck.


      At the close of all of the evidence, defendant moved to dismiss the remaining

charges of one count of felonious breaking and entering and two counts of felonious

larceny. The trial court denied the motion. Following the arguments of counsel, the

trial court instructed the jury, inter alia, on the doctrine of recent possession as

follows:


                   For this doctrine to apply the State must prove three
             things beyond a reasonable doubt:

                   First, that the property was stolen.

                    Second, that the defendant had possession of this
             property. A person possesses property when that person is
             aware of its presence and has, either alone or together with
             others, both the power and intent to control its disposition
             or use.

                   And third, that the defendant had possession of this
             property so soon after it was stolen and under such
             circumstances as to make it unlikely that the defendant
             obtained possession honestly.

                    If you find these things from the evidence beyond a
             reasonable doubt, you may consider them together with all
             other facts and circumstances in deciding whether or not
             the defendant is guilty of breaking or entering and larceny.

The jury returned verdicts finding defendant guilty of felonious breaking and

entering and felonious larceny in file number 14 CRS 50512 (the 20 March 2014

charges) and felonious larceny in file number 14 CRS 50509 (the remaining 4 April


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2014 charge). With the agreement of the prosecutor and defense counsel, the trial

court then arrested judgment on the felonious larceny offense in 14 CRS 50509. The

trial court imposed consecutive terms of incarceration of six to seventeen months on

each of the two convictions arising from the events of 20 March 2014, suspended the

active sentences, imposed sixty months of supervised probation, and required

defendant to serve an active sentence of four months as a condition of probation. The

trial court also ordered payment of restitution and attorney fees.        Defendant

appealed.


      At the North Carolina Court of Appeals, defendant raised two issues, asserting

that the trial court erred in (1) denying her motion to dismiss on the basis of

insufficiency of the evidence that she was the perpetrator of the 20 March 2014

breaking and entering and the subsequent larceny and (2) placing her on supervised

probation for sixty months without making a statutorily required finding that such

extended term of probation was necessary. With regard to the sufficiency of the

evidence, defendant noted that the State did not present any direct evidence linking

defendant either to breaking and entering or to larceny after breaking and entering,

instead relying upon the doctrine of recent possession.       On appeal, defendant

contended that the evidence at trial was insufficient to send the charges to the jury

for consideration as to both her culpable possession of the items allegedly stolen on

20 March 2014 and the recency of her possession of said items.



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         The Court of Appeals was divided in its decision. The majority agreed with

defendant’s position regarding the imputation to her of possession of the property at

issue and vacated the judgments entered upon her convictions. See State v. McDaniel,

817 S.E.2d 6 (N.C. Ct. App. 2018). The majority began by observing that


               Defendant was not convicted of breaking and entering, or
               sentenced for larceny, in connection with the stolen
               property actually found in her possession on 4 April 2014.
               Defendant was convicted on charges stemming from a
               breaking and entering and larceny that, according to the
               relevant indictment, occurred “on or about” 20 March 2014.
               That indictment specifically described the property stolen
               on that date as “a Sears pushmower, aluminum ladder,
               monitor heater, 100 gallons of kerosene, electrical wiring,
               flooring[,] and a German [cuckoo] clock.” These items were
               discovered by Lt. Det. Manis at 24 Ridge Street on 2 April
               2014, outside Defendant’s presence, although Defendant
               admitted she drove a short distance with the property in
               her truck earlier that day. Thus, the State’s own evidence
               suggested that up to two weeks may have passed between
               the alleged breaking and entering and larceny, on or
               around 20 March 2014, and the discovery of the stolen
               property, on 2 April 2014, and the property was not
               actually found in Defendant’s possession.

Id. at 12 (alterations in original). The majority went on to note that the only evidence

that defendant actually possessed the items alleged to have been stolen on 20 March

2014 was her own testimony that “she was briefly in possession of the stolen property

on 2 April 2014, when she transported it a few blocks from a building at 50 Woody

Street, where the property was being stored, to the residence at 24 Ridge Street.” Id.

at 13.



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                                   Opinion of the Court



      The majority cited precedent from this Court including State v. Maines, 301

N.C. 669, 674, 273 S.E.2d 289, 293 (1981) (“[T]he 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 . . . .”), and State v. Wilson, 313 N.C.

516, 536, 330 S.E.2d 450, 464 (1985) (“It is not always necessary that the stolen

property be actually in the hands of the defendant in order to trigger the inference

that he is the thief. The doctrine [of recent possession] is equally applicable where

the stolen property is under the defendant’s personal control [in the form of the

defendant’s girlfriend wearing the stolen watch several weeks after the alleged

theft].”). Ultimately, the Court of Appeals majority in the instant case opined:


                    The State contends that, because Defendant “ha[d]
             the power and intent to control the access to and use of [her
             truck][,] [she] ha[d] possession of the [vehicle’s] known
             contents[ ]” when, by her own admission, she transported
             the stolen property on 2 April 2014. According to the State,
             Defendant was “the driver and only authorized user of the
             truck[,]” and “there [was] no evidence that [ ] Nichols was
             present in the truck at the time [Defendant] had possession
             of the stolen items.” Even taking these statements as true,
             they do not establish exclusive possession.

Id. at 15 (alterations in original) (footnote omitted). In light of this determination

regarding exclusive possession, the majority did not consider defendant’s arguments

concerning the temporal proximity component of the doctrine of recent possession

based on the passage of time between the alleged theft on 20 March 2014 and


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                                    Opinion of the Court



defendant’s admitted transfer of the items from one location to another via her pickup

truck on 2 April 2014.1


       Judge Tyson dissented because, in his view,


              Defendant admitted she alone had transported the items
              that had been stolen on or about 20 March 2014 in her
              truck and she had unloaded them at the Ridge Street
              address. Her possession of the recently stolen goods was
              exclusive and 100% within her control at that time.
              Whether the two weeks, which may have passed between
              the breaking and entering and larceny and the discovery of
              the property being stolen, and Defendant’s admitted
              possession, is too remote to apply the doctrine of recent
              possession was a proper question for the jury and does not
              support vacating Defendant’s conviction as a matter of law.

Id. at 17 (Tyson, J., dissenting) (citing Wilson, 313 N.C. at 536–37, 330 S.E.2d at 464).


       On 1 June 2018, the State filed a motion for temporary stay and a petition for

writ of supersedeas in this Court. On the same date, the Court allowed the motion

for temporary stay. The State filed its notice of appeal on 19 June 2018 based upon

the dissenting opinion in the Court of Appeals. The Court allowed the State’s petition

for writ of supersedeas on 25 June 2018.


                                         Analysis




       1Neither the majority nor the dissent addressed defendant’s contentions of error
concerning the length of her supervised probation.

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                                   Opinion of the Court



      We consider a trial court’s ruling on a motion to dismiss de novo. See State v.

Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).


                    Upon defendant’s motion for dismissal, the question
             for the Court is whether there is substantial evidence (1) of
             each essential element of the offense charged, or of a lesser
             offense included therein, and (2) of defendant’s being the
             perpetrator of such offense. If so, the motion is properly
             denied.

                    If the evidence is sufficient only to raise a suspicion
             or conjecture as to either the commission of the offense or
             the identity of the defendant as the perpetrator of it, the
             motion should be allowed.

Id. at 98, 261 S.E.2d at 117 (citations omitted). In challenges to the sufficiency of

evidence, this Court reviews the evidence in the light most favorable to the State.

E.g., State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Contradictions

and discrepancies are for the fact-finder to resolve. Id. at 544, 417 S.E.2d at 761. The

test for sufficiency of the evidence is the same whether the evidence is direct or

circumstantial, or both. E.g., State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388

(1984). “Circumstantial evidence may withstand a motion to dismiss and support a

conviction even when the evidence does not rule out every hypothesis of innocence.”

State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988) (citation omitted). If “a

reasonable inference of defendant’s guilt may be drawn from the circumstances,” then

“it is for the jury to decide whether the facts, taken singly or in combination, satisfy

[it] beyond a reasonable doubt that the defendant is actually guilty.” State v. Thomas,

296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (emphasis omitted) (quoting State v.

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Rowland, 263 N.C. 353, 358, 139 S.E.2d 661, 665 (1965)). “Any contradictions or

conflicts in the evidence are resolved in favor of the State, and evidence unfavorable

to the State is not considered.” State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594

(2009) (citations omitted).


      The doctrine of recent possession is


             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. 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. 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.

Maines, 301 N.C. at 673–74, 273 S.E.2d at 293 (citations omitted). Applying the

doctrine in that case, the Court stated that


             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 . . . .

                    The “exclusive” possession [may include] . . . . 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. . . .



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Id. at 674–75, 273 S.E.2d at 293–94 (citation omitted). In sum, the Court in Maines

concluded that “the evidence must show the person accused of the theft had complete

dominion, which might be shared with others, over the property . . . which sufficiently

connects the accused person to the crime. Id. at 675, 273 S.E.2d at 294.


      In the present case, defendant was convicted by a jury on the charges of

felonious breaking and entering and felonious larceny in case file 14 CRS 50512.

These convictions arose from an indictment which listed the property stolen on the

offense date of 20 March 2014 as “a Sears pushmower, aluminum ladder, monitor

heater, 100 gallons of kerosene, electrical wiring, flooring and a German cuckoo

clock.” The evidence at trial, taken in the light most favorable to the State, tended to

show that:    (1) items listed in the indictment which charged defendant with

commission of the alleged 20 March offenses were discovered at 24 Ridge Street on 2

April 2014; (2) two unnamed individuals reportedly had unloaded those items listed

in the indictment from a white pickup truck and left them at 24 Ridge Street; (3) an

individual operating a white pickup truck was seen entering 30 Woody Street on 4

April 2014, removing items from the house, driving away from the address, and then

turning onto Ridge Street; (4) on that same date, MCSO Detective Grindstaff

discovered items which were reported as stolen from 30 Woody Street earlier that day

in the bed of a pickup truck with defendant seated in the driver’s seat; (5) defendant

admitted that she had loaded the items listed in the indictment as stolen from 30

Woody Street on 4 April 2014 into the bed of her truck on that date; (6) defendant

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                                  Opinion of the Court



admitted that at some point in April, she had “load[ed] up” into her pickup truck “the

ladder you have spoken of, and the monitor heater, and various other things that

were all under” the house at 50 Woody Street and delivered these items to Ridge

Street; and (7) defendant acknowledged that she had previously visited the house at

30 Woody Street in October 2013 and participated in the removal of various items

from the residence.


      In sum, defendant acknowledged that she was in control of, and in possession

of, the aluminum ladder, monitor heater, and other items identified in the 20 March

indictment as of 2 April 2014, which was two weeks after the alleged 20 March

offenses involving these items. Even under defendant’s self-serving testimony, her

possession of the property at issue is deemed to be exclusive despite her effort to

minimize her criminal culpability by couching her possession and transportation of

the stolen items as the responsibility of Nichols, who also was charged in connection

with the 20 March 2014 offenses. Defendant’s position is unpersuasive because the

extent and strength of her ownership interest in the property is inconsequential in

evaluating the existence of the determinative factors undergirding the doctrine of

recent possession in the face of defendant’s motion to dismiss.         “ ‘[E]xclusive’

possession” may include “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.” Maines, 301 N.C. at 675, 273 S.E.2d at 294. Taken in the light

most favorable to the State and giving the State the benefit of every reasonable

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                                  Opinion of the Court



inference, the evidence presented at trial constituted substantial evidence of the

second prong under the doctrine of recent possession—exclusive possession.

Defendant was aware of the presence of the property which was situated in the bed

of her white pickup truck and had, either by herself or together with her co-worker

and joint actor Nichols, both the power and intent to control the disposition or use of

the items. See Wilson, 313 N.C. at 536, 330 S.E.2d at 464. Thus, the Court of Appeals

majority erred in vacating defendant’s convictions.


      We therefore reverse the decision of the Court of Appeals and remand this case

to that appellate court for consideration of defendant’s argument regarding the third

prong of the doctrine of recent possession—the sufficiency of the recency of

defendant’s possession of the property at issue—as well as consideration of

defendant’s argument that the trial court erred in imposing upon her an extended

term of probation.


      REVERSED AND REMANDED.


      Justice DAVIS did not participate in the consideration or decision of this case.




                                         -19-
      Justice EARLS dissenting.

      The evidence to support Ms. McDaniel’s conviction for breaking and entering,

and larceny after breaking and entering, based on her alleged possession of items

stolen from the uninhabited residence at 30 Woody Street on 20 March 2014 is

insufficient. McDaniel’s conviction is not based on the items found in her possession

on 4 April 2014, but instead is based on the items not found in her possession from a

breaking and entering that occurred on or about 20 March 2014. State v. McDaniel,

817 S.E.2d 6, 8–9 (N.C. Ct. App. 2018). The doctrine of recent possession requires

the State to show beyond a reasonable doubt that:

             (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; . . . and (3) the possession was recently
             after the larceny, mere possession of stolen property being
             insufficient to raise a presumption of guilt.

State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981) (citations omitted). At

issue in this case is whether, taking all the evidence in the light most favorable to the

State, there is substantial evidence of the second element above. See State v. Barnes,

345 N.C. 146, 148, 478 S.E.2d 188, 189–90 (1996). The stolen items, namely a monitor

heater, copper tubing, aluminum ladder, lawnmower, pipes, and wiring, were never

found in McDaniel’s possession. McDaniel instead admitted to briefly transporting

the items for her employer Nichols on 2 April 2014. The State offered no evidence
                                 STATE V. MCDANIEL

                                  Earls, J., dissenting



that McDaniel had the “power and intent to control the goods” to the exclusion of

others, between the date of the breaking and entering that occurred on or about 20

March 2014 and the date McDaniel admitted to transporting the items on 2 April

2014. Furthermore, there was no evidence that McDaniel even knew the items had

been stolen from 30 Woody Street at the time she was transporting them for her

employer. “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.” Maines, 301 N.C. at

674, 273 S.E.2d at 293 (citation omitted).

      At the time of the breaking and entering, McDaniel was working for Nichols

by collecting items for transportation to the scrapyard. The two often worked at 50

Woody Street searching for items in and around the house to sell to the scrapyard

and frequently used McDaniel’s truck to transport the items. McDaniel testified at

trial that while at the home located at 50 Woody Street, Nichols asked her to load the

property at issue onto her truck, drive it down the hill, and unload it outside his

residence because he was storing it for a friend. McDaniel had no knowledge the

property was stolen. Taking the evidence in the light most favorable to the State, the

State only showed McDaniel briefly possessed the stolen property up to two weeks

after the breaking and entering occurred. McDaniel’s conviction therefore rested only

upon her brief possession of the stolen property that she was instructed to transport

for another, specifically her employer Nichols.


                                          -2-
                                   STATE V. MCDANIEL

                                     Earls, J., dissenting



       This Court has warned that “[t]he applicability of the doctrine of the inference

of guilt derived from the recent possession of stolen goods depends upon the

circumstance and character of the possession.” State v. Weinstein, 224 N.C. 645, 650,

31 S.E.2d 920, 924 (1944). Although McDaniel admitted to temporarily possessing

the stolen property, the possession was under a unique circumstance and character

due to McDaniel’s employment status. “It is not sufficient to charge [the stolen

property] to be the property of one who is a mere servant, although he may have had

actual possession at the time of the larceny.” State v. Greene, 289 N.C. 578, 584, 223

S.E.2d 365, 369 (1976) (quoting State v. Jenkins, 78 N.C. 478, 479 (1878)); see also

State v. Campbell, 810 S.E.2d 803, 819 (N.C. Ct. App. 2018) (“[A]n employee in

possession of property on behalf of the employer does not have a sufficient ownership

interest in the property.”). It is essential to understand the legal implications of the

fact that McDaniel was an employee of Nichols’, and that she was acting under his

direction when she transported the property.1 Here, because McDaniel was a mere

employee of Nichols’ and acting under his directive when she transported the

property, her possession was not that of herself but of her employer. See Greene, 289

N.C. at 584, 223 S.E.2d at 369 (“his possession is the possession of his master.”)

(quoting Jenkins, 78 N.C. at 479).



       1Similarly, a pawn shop owner is not guilty of larceny through the doctrine of recent
possession if she has possession of stolen goods that were pawned. Instead, the State places
regulations on pawn shop owners “to prevent unlawful property transactions [ ] in stolen
property.” N.C.G.S. § 66-386(1) (2012).

                                             -3-
                                 STATE V. MCDANIEL

                                   Earls, J., dissenting



      In addition to possessing stolen property, the second element of the doctrine

requires that the defendant have “the power and intent to control the goods.” Maines,

301 N.C. at 674, 273 S.E.2d at 293 (citations omitted) (emphasis added). Contrary to

the majority’s view, McDaniel lacked the intent to control the stolen property.

Instead, evidence showed that subsequent to Nichols’ orders, McDaniel transported

the items from 50 Woody street to 24 Ridge Street, a house a short distance away.

Proof of McDaniel’s lack of intent to possess the property was present after she

unloaded the property because she failed to return to the residence to take possession

and control of the items. Evidence further showed that McDaniel had no affiliation

to the residence where she unloaded the property and was not present when the items

were discovered. The State failed to offer any evidence to contradict McDaniel’s

version of events and McDaniel never gave conflicting stories concerning the property

to law enforcement. Cf. State v. May, 292 N.C. 644, 659–60, 235 S.E.2d 178, 188

(1977) (judgment of nonsuit properly denied where “[t]he State’s evidence is sufficient

to contradict and rebut defendant’s exculpatory statement, and casts great doubt

upon the credibility of defendant’s statement.”).

      The majority today holds that in this case, defendant’s recent possession of

stolen property alone is sufficient to support a conviction for breaking and entering

and larceny after breaking and entering. However, “[p]roof of a defendant’s recent

possession of stolen property, standing alone, does not shift the burden of proof to the

defendant.” Maines at 674, 273 S.E.2d at 293. Because the State failed to come


                                           -4-
                                STATE V. MCDANIEL

                                  Earls, J., dissenting



forward with substantial evidence that McDaniel had exclusive possession over the

stolen property with the power and intent to control the items, the Court of Appeals’

decision should be affirmed.




                                          -5-
