An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-346
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 October 2014


STATE OF NORTH CAROLINA

      v.                                      Orange County
                                              Nos. 12 CRS 245, 53107
BABE ANDREW THORPE, JR.



      Appeal by defendant from judgment entered 5 September 2013

by Judge Michael J. O’Foghludha in Orange County Superior Court.

Heard in the Court of Appeals 25 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Elizabeth N. Strickland, for the State.

      M. Alexander Charns, for defendant-appellant.


      CALABRIA, Judge.


      Babe    Andrew     Thorpe,     Jr.   (“defendant”)       appeals     from    a

judgment     entered    upon    jury    verdicts     finding     him   guilty     of

felonious breaking or entering (“B&E”) and larceny after B&E

that includes his guilty plea to attaining habitual B&E status.

We find no error, but remand for the correction of a clerical

error.
                                             -2-
       On 6 November 2012, by 8:00 a.m., both Kathryn Flynn (“Mrs.

Flynn”)    and     her     husband     left      their     residence       (the    “Flynns’

residence”) on Old North Carolina Highway 10 in Hillsborough,

North Carolina.            Between 12:00 p.m. and 2:00 p.m., Kim Rider

(“Rider”) arrived at the Flynns’ residence to walk their dog.

Rider had a key to the residence, and found everything “normal”

at that time.

       At 2:30 p.m., Orange County Sheriff’s Office Investigator

Doug     Koehler     (“Investigator           Koehler”)          observed    a     burgundy

Explorer (“the        vehicle”) parked in the driveway of a vacant

American    Legion       building      on     Old    North       Carolina    Highway   10,

located     two-tenths       of   a       mile      from    the    Flynns’       residence.

Investigator Koehler drove into the driveway facing the vehicle

since the driver of the vehicle had backed it into the driveway

facing     the    highway.        As       Investigator          Koehler     checked   the

vehicle’s        license    tag      to     determine        the    owner,       defendant,

approached him.

       Investigator         Koehler         noticed        the     front     pockets     of

defendant’s sweatshirt “were weighted down” with loose change.

Defendant’s        response       to        Investigator           Koehler’s       question

regarding the change was that a lady down the street had paid

him in change for raking leaves, but defendant did not know how
                                           -3-
much change he had in his pockets.                 Defendant was also unable to

tell Investigator Koehler the amount he had charged to perform

the task.      When Investigator Koehler asked defendant to show him

where    he    had   raked       the   leaves,    defendant       “became    very   loud

saying, ‘[T]ake me to jail.                  I have a lawyer. . . . You can

search    me.’”       With    defendant’s        consent,    Investigator        Koehler

performed a pat-down search.

       In defendant’s back pocket, Investigator Koehler found a

coin     bearing     the     name      Louis     Braille    “in     a     hard   plastic

container[.]”              Investigator         Koehler     obtained        defendant’s

permission to search the vehicle and found two women’s rings

beside the gear shift on the center console.                        There were clear

stones in the setting of one of the rings, while the other was

set     with    clear      and     colored      stones.                 Defendant   told

Investigator Koehler that the rings belonged to his girlfriend.

Investigator Koehler also noticed loose change on the back seat

of the vehicle which was similar to the change in defendant’s

pockets because it was “all silver.                There were no pennies[.]”

       After canvassing the residences in the area without finding

any    signs    of   a     forced      entry,    Investigator       Koehler      allowed

defendant      to    leave.         Investigator     Koehler       then     spoke   with
                                          -4-
several residents in the area, and discovered that none of them

had hired defendant to rake leaves.

      At 6:00 p.m., when Mrs. Flynn returned home, she discovered

that her house had been “ransacked.”                   A limited-release Louis

Braille commemorative coin encased in a hard plastic container

and two antique rings set with diamonds and rubies were missing

from the residence.          Mrs. Flynn also observed that a coin jar

containing nickels, dimes, and quarters had been emptied, while

a   vase   full   of    pennies     was    undisturbed.        The     next    day,    7

November 2012, Investigator Koehler learned that several items

and coins had been stolen from the Flynns’ residence that were

similar to those he had observed in defendant’s possession the

previous afternoon.

      Defendant     was    subsequently         arrested      and      charged       with

felonious    B&E,      larceny    after    B&E,     and   possession      of     stolen

property.     At    trial,       Investigator       Koehler   testified        for   the

State regarding his encounter with defendant, that defendant had

been walking from the direction of the Flynns’ residence, and

the items defendant possessed.              After all the evidence had been

presented,    defendant      made    an    unsuccessful       motion    to    dismiss.

The   jury   returned     verdicts        finding    defendant      guilty     of    all

offenses.    Defendant then pled guilty to the status offense of
                                       -5-
habitual B&E and stipulated to the aggravating factor that he

committed the offenses while on pretrial release.                  The trial

court   arrested    judgment     on    the   possession    of   stolen   goods

offense     and   consolidated    defendant’s     remaining     offenses   for

judgment.     The trial court then sentenced defendant to a minimum

of 36 months and a maximum of 56 months in the custody of the

North Carolina Division of Adult Correction.              Defendant appeals.

    Defendant argues that the trial court erred in denying his

motion to dismiss.        Specifically, defendant contends that the

State failed to present substantial evidence of his identity as

the perpetrator.      We disagree.

    In reviewing the denial of defendant’s motion to dismiss,

this Court must determine whether “there is substantial evidence

(1) of each essential element of the offense charged, and (2)

that defendant is the perpetrator of the offense.                Substantial

evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”               State v. Key, 182

N.C. App. 624, 628-29, 643 S.E.2d 444, 448 (2007) (citations and

quotation marks omitted).             We   consider   “the evidence in the

light most favorable to the State, and the State is entitled to

all reasonable inferences which may be drawn from the evidence.”
                                               -6-
State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123

(2005).

       “The essential elements of larceny are that the defendant:

1) took the property of another; 2) carried it away; 3) without

the owner’s consent; and 4) with the intent to deprive the owner

of the property permanently.” State v. Osborne, 149 N.C. App.

235,   242-43,       562    S.E.2d      528,    534       (2002)   (citation     omitted).

Larceny    committed         pursuant     to     a    breaking      or    entering     is    a

felony.     N.C. Gen. Stat. § 14-72(b)(2) (2013).                         “Any person who

breaks or enters any building with intent to commit any felony

or larceny therein shall be punished as a Class H felon.”                                N.C.

Gen. Stat. § 14-54(a) (2013).                   “[T]he intent to commit larceny

may be inferred from the fact that [the] defendant committed

larceny.”       State v. Chillo, 208 N.C. App. 541, 546, 705 S.E.2d

394, 398 (2010) (citation omitted).

       Where    there       is   only    circumstantial            evidence     of   B&E    or

larceny,       the    State      must    rely        on    the     doctrine     of   recent

possession.      State v. Maines, 301 N.C. 669, 673, 273 S.E.2d 289,

293 (1981).          “For the doctrine of recent possession to apply,

the State must show: (1) the property was stolen, (2) defendant

had    possession      of    the   property,          subject      to    his   control     and

disposition to the exclusion of others, and (3) the possession
                                   -7-
was sufficiently recent after the property was stolen[.]”              State

v. McQueen, 165 N.C. App. 454, 460, 598 S.E.2d 672, 677 (2004).

“The possession, in point of time, should be so close to the

theft as to render it unlikely that the possessor could have

acquired the property honestly.”           State v. Jackson, 274 N.C.

594, 597, 164 S.E.2d 369, 370 (1968).            “Under the doctrine of

recent possession, possession of recently stolen property raises

a presumption that the possessor stole the property.”             State v.

Lee, 213 N.C. App. 392, 395, 713 S.E.2d 174, 177 (2011).               “Non-

unique    property      may   be    identified       by    reference     to

characteristics other than its appearance:             the assemblage or

combination of items recovered, the quantity of items recovered,

and the stamps and marks on items recovered.”             Id. at 395, 713

S.E.2d at 177.

    In the instant case, the State presented evidence that Mrs.

Flynn returned home to a ransacked house and discovered her

rings and coins were stolen from her residence.              Investigator

Koehler   encountered    defendant,      who   had   possession   of    Mrs.

Flynn’s property     without her consent and with the intent to

deprive her of her property permanently.             Investigator Koehler

noticed defendant was on foot walking from the direction of the

Flynns’ residence to his vehicle, which was parked on vacant
                                          -8-
property      located     two-tenths       of     a     mile     from       the    Flynns’

residence.      Defendant’s possession of Mrs. Flynn’s property was

close to the time that Rider had found the Flynns’ residence

undisturbed.

       Defendant contends that the State failed to prove that the

coins and rings found in his possession were the same items

stolen from the Flynns’ residence.                     Defendant notes that the

“unknown number of U.S. coins” removed from Mrs. Flynn’s coin

jar    were   indistinguishable       from      “millions       of    other       coins    in

circulation.”           Defendant   further           characterizes         Investigator

Koehler’s     description      of   the     rings       in     the    vehicle      as     too

“generic” to identify them as Mrs. Flynn’s rings.                             Absent any

other    evidence    linking    him    to       the     larceny       at    the    Flynns’

residence,      defendant      insists          “[t]here        was        nothing      save

conjecture” to establish his possession of the stolen property.

Defendant is mistaken.

       In defendant’s possession were a substantial quantity of

“all silver” loose change, a commemorative Louis Braille coin

encased in plastic, and two women’s rings set with stones – the

very    types   of   items     missing      from       Mrs.     Flynn’s      “ransacked”

residence.      The likelihood that defendant could have acquired

this precise combination of objects honestly, and so close to
                                         -9-
the Flynns’ residence at the time Investigator Koehler observed

him, is unlikely.       See Jackson, 274 N.C. at 597, 164 S.E.2d at

370.    Although Mrs. Flynn’s property was a combination of unique

property (the rings and the Louis Braille commemorative coin) as

well as     non-unique property (the               coins), the coins could be

identified    by    reference      to    characteristics         other   than    their

appearance,    such    as   “the    assemblage        or   combination     of   items

recovered[.],” Lee, 213 N.C. App. at 395, 713 S.E.2d at 177.

The coins were identified by the fact that they were “all silver

. . . . no pennies[.]”          Mrs. Flynn reported that the empty coin

jar had contained nickels, dimes, and quarters and a vase full

of pennies was undisturbed.                  Therefore, it was unlikely that

defendant    could    innocently        be    in   possession     of   Mrs.    Flynn’s

recently    stolen    unique    rings        in    combination    with   the    coins.

Defendant’s possessing the property raises the presumption that

defendant was the perpetrator who stole the property.                    Id.

       Viewing the evidence in the light most favorable to the

State, the State presented substantial circumstantial evidence

that Mrs. Flynn’s stolen property was the property Investigator

Koehler observed in defendant’s possession on the afternoon of

the larceny.       Pursuant to the doctrine of recent possession, the
                                     -10-
State presented substantial evidence from which the jury could

infer defendant’s guilt.     Defendant’s argument is overruled.

    Although we find no error in defendant’s trial, there is a

clerical error in the section designated for the trial court’s

findings on the judgment indicating that defendant was sentenced

as an habitual felon.        Since the trial court found defendant

attained the status of an habitual breaking and entering status

offender,   and   although   defendant      was   properly   sentenced   as

attaining   the   status   of   an    habitual    breaking   and   entering

offender, the judgment needs to be corrected.                We remand for

correction of this clerical error.

    No error; remanded for correction of clerical error.

    Judges GEER and McCULLOUGH concur.

    Report per Rule 30(e).
