              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-307

                                 Filed: 20 June 2017

Durham County, No. 11 CRS 60671, 059542-43, 059723

STATE OF NORTH CAROLINA

             v.

FRANKLIN THOMAS STREET, Defendant.


      Appeal by defendant on petition for writ of certiorari from judgments signed

on or about 7 November 2012 by Judge Abraham P. Jones in Superior Court, Durham

County. Heard in the Court of Appeals 19 September 2016.


      Attorney General Joshua H. Stein, by Assistant Attorney General B. Carrington
      Skinner IV, for the State.

      Anne Bleyman, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals from judgments convicting him of obtaining property by

false pretenses and other crimes. Because the trial court properly instructed the jury,

we conclude there was no error in defendant’s trial.

                                     I.    Background

      The State’s evidence tended to show that on 30 August 2010, Mr. Carl Jones

was working at North Carolina Central University with ground maintenance.

Around 10:50 a.m., Mr. Jones noticed that a pair of Stihl hedge trimmers was missing
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from the back of his cart. Around 12:29 p.m. on the same day, J & L Jewelry and

Pawn (“J & L”) bought a pair of Stihl hedge trimmers. The pawn ticket listed the

seller’s identifying information, including name, address, height, ID number, phone

number, and date of birth; defendant was the seller. The shop purchased the

trimmers from defendant for $50. In accord with State law, the pawn shop notified

law enforcement of the items it purchased.

      In November 2011, Officer Benjamin Coleman of the North Carolina Central

University Police Department used the Police-to-Police search engine “to search

through the record management systems of other departments” for stolen items and

he discovered that the stolen Stihl hedge trimmers were sold to J & L. Officer

Coleman contacted J & L and acquired the pawn ticket which had a serial number

matching the stolen Stihl hedge trimmers as well as the name of the seller. On 25

November 2011, Officer Coleman met with defendant to investigate the stolen

trimmers.   Thereafter, defendant was indicted with obtaining property by false

pretenses. Specifically, the indictment stated that defendant

            unlawfully, willfully and feloniously did knowingly and
            designedly with the intent to cheat and defraud obtain and
            attempt to obtain $50.00 in U.S. currency from J & L
            Jewelry And Pawn Inc. by means of a false pretense which
            was calculated to deceive and did deceive.
                  The false pretense consisted of the following:
            pawning hedge trimmers that Defendant alleged that he
            owned which in fact he knew or should have reasonably
            known were in fact stolen property.



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Defendant was not charged with any crime for taking the hedge trimmers.

      After the evidence was presented at trial, Judge Jones discussed the proposed

jury charge with both parties. Over defendant’s objection, Judge Jones determined

that an instruction regarding the doctrine of recent possession was appropriate in

light of the offense charged and the evidence presented at trial. On 10 July 2012, the

jury returned a verdict of guilty to the charge of obtaining property by false pretenses,

and the trial court entered judgment. Thereafter, defendant filed a petition for writ

of certiorari which this Court allowed.

                   II.    Doctrine of Recent Possession Instruction

      Defendant’s only argument on appeal is that the trial court erred by giving a

jury instruction on the doctrine of recent possession because “[t]his instruction was

not supported by the evidence. The doctrine of recent possession does not apply to

the offense of obtaining property by false pretenses.” Defendant argues that if we

allow the doctrine of recent possession to be used in this context, this decision will

permit the doctrine to “be applied to any other crime from assault to speeding to

elude. That would be absurd, and the doctrine does indeed have limits.” Defendant

argues repeatedly – seven times by our count, almost verbatim – that “[t]he doctrine

of recent possession does not apply to the offense of obtaining property by false

pretenses[,]” but defendant does not really explain why. While from our research it

is true that there are no precedential cases addressing the doctrine of recent



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possession instruction in the context of obtaining property by false pretenses, that

does not necessarily mean that the instruction is improper.

      Whether an instruction on the doctrine of recent possession may be used in a

case for obtaining property by false pretenses is a question of law, and thus we review

this issue de novo. See generally State v. Barron, 202 N.C. App. 686, 694, 690 S.E.2d

22, 29 (2010) (“Whether a jury instruction correctly explains the law is a question of

law, reviewable by this Court de novo.”). Again, there appear to be no North Carolina

cases that have used the doctrine of recent possession in the context of obtaining

property by false pretenses, but, even so, we see no directive mandating that the

doctrine of recent possession cannot be used in this context. Cases describe the

doctrine of recent possession as a means of creating presumption based upon certain

evidence:

             The doctrine of recent possession is a rule of law creating
             the presumption that a person in possession of recently
             stolen property is guilty of its wrongful taking and of the
             unlawful entry associated with that taking.             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 the defendant’s possession. The
             presumption or inference arising from recent possession of
             stolen property is to be considered by the jury merely as an
             evidential fact, along with the other evidence in the case,
             in determining whether the State has carried the burden
             of satisfying the jury beyond a reasonable doubt of the
             defendant’s guilt.
                    For the doctrine of recent possession to apply, the
             State must show: (1) the property was stolen, (2) defendant


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             had possession of the property, subject to his control and
             disposition to the exclusion of others, and (3) the possession
             was sufficiently recent after the property was stolen, as
             mere possession of stolen property is insufficient to raise a
             presumption of guilt.

State v. McQueen, 165 N.C. App. 454, 459–60, 598 S.E.2d 672, 676–77 (2004)

(citations and quotation marks omitted). “The inference derived from recent

possession is to be considered by the jury merely as an evidentiary fact, along with

the other evidence in the case, in determining whether the State” has proved

defendant’s guilt beyond a reasonable doubt. State v. Fair, 291 N.C. 171, 173, 229

S.E.2d 189, 190 (1976) (citations and quotation marks omitted).

      Case law shows that, if supported by the evidence, the doctrine of recent

possession can be applied to a variety of property theft crimes. See, e.g., State v. Bell,

270 N.C. 25, 30, 153 S.E.2d 741, 746 (1967) (“A majority of the cases which have

considered the doctrine of recent possession in this jurisdiction have been cases

involving breaking, entering and larceny. However, we find no valid reason why the

rule does not apply to property taken in a robbery with firearms in the same manner

as property taken by breaking and entering.” (quotation marks omitted)); State v.

Pickard, 143 N.C. App. 485, 487, 547 S.E.2d 102, 104 (2001) (“The doctrine of recent

possession allows the jury to infer that the possessor of certain stolen property is

guilty of larceny.”); State v. Brown, 221 N.C. App. 383, 388, 732 S.E.2d 584, 588 (2012)

(“The doctrine of recent possession is a rule of law that, upon an indictment for



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larceny, possession of recently stolen property raises a presumption of the possessor’s

guilt of the larceny of such property. 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.” (citation and quotation marks omitted)). Indeed, in accord with case law,

the North Carolina Pattern Jury Instruction for the doctrine of recent possession

specifically provides that “[i]f 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 [robbery]

[breaking or entering] [larceny] (name other crime)[;]” N.C.P.I. – Crim. 104.40. The

sentence is then footnoted and provides,

             [t]his charge is adaptable to robbery, breaking or entering,
             and larceny; see e.g. State v. Frazier, 268 N.C. 249 (1966)
             (unlawful taking of a vehicle), but the doctrine of recent
             possession is not applicable to the crime of receiving stolen
             goods. It is also adaptable to possession of stolen goods.
             State v. Griffin, ___ N.C. App. ___, 763 S.E.2d 927 (August
             5, 2014).

Id. n.1.

      Defendant directs our attention to State v. Neill, where our Supreme Court

determined that the doctrine of recent possession does not apply to the charge of

receiving stolen goods. 244 N.C. 252, 256, 93 S.E.2d 155, 158 (1956). But the



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reasoning in Neill does not help defendant because it was decided on the specific

elements of receiving stolen goods and the logic of that case is not applicable here:

             It suffices here to note that the crime of receiving
             presupposes, as an essential element of the offense, that
             the property in question had been stolen by someone other
             than the person charged with the offense of receiving.
             Therefore, it is manifest that a person cannot be guilty both
             of stealing property and of receiving the same property
             knowing it to have been stolen. If the one is true, the other
             cannot be.
                    It is essential to a conviction of the crime charged in
             the third count of the bill of indictment under consideration
             that the goods received by the defendants were stolen by
             another and retained that status until they were delivered
             to the defendants.

Id. at 255, 93 S.E.2d at 157–58 (citation and quotation marks omitted). In other

words, the doctrine of recent possession presumes the defendant is the taker of the

goods, and one cannot be both the taker of the goods and the receiver of the goods

from the taker. See id.

      More applicable to this case is Fair, where the defendant was convicted with

felonious breaking and entering into a home and larceny of several items, including

tape players, bicycles, radios, silver dollars, and other coins. See Fair, 291 N.C. at

172, 229 S.E.2d at 189. The next day, the defendant was found near the home from

which the items were stolen with gold cuff links which had also been taken from the

home; the cuff links were not mentioned in the warrant and defendant was not

convicted of stealing them. Id. 229 S.E.2d at 189-90. The trial court had instructed



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on the doctrine of recent possession based upon the evidence that defendant possessed

the cuff links, but our Supreme Court found error and granted a new trial because

“[t]he jury should have been instructed that in order for the doctrine of recent

possession to apply they must find beyond a reasonable doubt that the cuff links were

stolen at the same time and place as the other property for which defendant stands

indicted.” Id. at 174, 229 S.E.2d at 190-91.

      Although the issues in Fair were different than this case, we find it instructive

since the court held that if the cuff links were stolen “at the same time and place as

the other property for which defendant” was charged, the doctrine of recent

possession based on the cuff links would have been a proper instruction even though

defendant was not charged with taking the cuff links themselves. Id. Thus, we

conclude that use of the doctrine of recent possession instruction is not limited to

charges arising solely from the item of property which the defendant is charged with

stealing. See id. Based on Fair, we see no reason the State would be required to

charge a defendant with the taking of the hedge trimmers to be permitted to use

either the evidence or the instruction. See id.

      Here, the State presented evidence that the hedge trimmers were stolen,

defendant exclusively had possession of the property at J & L, and defendant’s

possession was within approximately two hours after the hedge trimmers were taken.

Thus, there was evidence upon which the jury could infer that defendant was the one



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who took the hedge trimmers, so the trial court could properly instruct on the doctrine

of recent possession. See generally McQueen, 165 N.C. App. at 460, 598 S.E.2d at

676–77. The elements of obtaining property by false pretense are

             [t]he crime of obtaining property by false pretenses
             pursuant to G.S. 14–100 is defined as follows: (1) a false
             representation of a subsisting fact or a future fulfillment or
             event, (2) which is calculated and intended to deceive, (3)
             which does in fact deceive, and (4) by which one person
             obtains or attempts to obtain value from another.

State v. Kilgore, 65 N.C. App. 331, 334, 308 S.E.2d 876, 878 (1983). Unlike in Neill,

244 N.C. 252, 93 S.E.2d 155, the doctrine of recent possession does not have elements

which are logically inconsistent with obtaining property by false pretenses, so we see

no reason an instruction on the doctrine of recent possession could not be used in

conjunction with the crime of obtaining property by false pretenses.          Compare

McQueen, 165 N.C. App. at 460, 598 S.E.2d at 676–77; Kilgore, 65 N.C. App. at 334,

308 S.E.2d at 878. Thus, the trial court properly instructed the jury, and defendant’s

argument is overruled.

      No Error.

      Chief Judge McGEE and Judge INMAN concur.




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