1
No. COA06-1505SEVENTEENTH (A) DISTRICT
COURT OF APPEALS OF NORTH CAROLINA
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STATE OF NORTH CAROLINA)
)
V.)FROM ROCKINGHAMCOUNTY
)
ROBERT THOMAS WINCHESTER, Sr.)
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DEFENDANT APPELLANT’S BRIEF
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1
TABLE OF AUTHORITIES ...... v
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 2
STATEMENT OF THE GROUNDS OF APPELLATE REVIEW . . 3
STATEMENT OF THE FACTS ...... 3
ARGUMENT
I. MR. WINCHESTER’S CONVICTIONS FOR BREAKING
AND ENTERING, LARCENY AND POSSESSION OF STOLEN PROPERTY MUST BE VACATED BECAUSE THE EVIDENCE THAT HE HAD POSSESSED ANY STOLEN PROPERTY WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND
THE TRIAL COURT COMMITTED ERROR AND ABUSE OF DISCRETION IN NOT GRANTING THE MOTION TO
DISMISS AND IN SUBMITTING THESE CHARGES TO THE JURY UNDER THE DOCTRINE OF RECENT POSSESSION
IN VIOLATION OF MR. WINCHESTER’S STATE AND
FEDERAL RIGHTS ...... 6
- Statement ofstandard of review . . . 6
B.The doctrine of recent possession
did not apply where the State did not establish the non-unique remote control
as fruits of the crime ...... 7
C.The State did not prove beyond a reasonable doubt that any identifiable stolen goods were in Mr. Winchester’s
actual or constructive custody and
control to the exclusion of others ...... 24
D.Conclusion ...... 27
II. THE TRIAL COURT COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY ON BREAKING AND ENTERING, LARCENY PURSUANT TO A BREAKING OR ENTERING
AND POSSESSION OF STOLEN PROPERTY PURSUANT TO
A BREAKING OR ENTERING WHERE THE INSTRUCTIONS FAILED TO CHARGE HOW THERE WAS A BREAKING OR
AN ENTRY IN VIOLATION OF MR. WINCHESTER’S
STATE AND FEDERAL RIGHTS ...... 27
A.Statement of standard of review . . .27
B.Analysis ...... 28
III. MR. WINCHESTER’S CONVICTIONS MUST BE VACATED BECAUSE THE TRIAL COURT COMMITTED
ERROR OR PLAIN ERROR ADMITTING THE IRRELEVANT
AND PREJUDICIAL HAMMER AND RELATED TESTIMONY
INTO EVIDENCE AND IN NOT GRANTING THE MOTION
TO DISMISS AND IN SUBMITTING THE CHARGES TO
THE JURY WHERE THE EVIDENCE WAS INSUFFICIENT
AS A MATTER OF LAW AND FACT THAT THE HAMMER CONNECTED MR. WINCHESTER TO THE BREAK-IN IN VIOLATION OF HIS STATE AND FEDERAL RIGHTS . . . . 31......
A.Statement of standard of review . . .31
B.Analysis ...... 32
CONCLUSION ...... 35
CERTIFICATE OF SERVICE ...... 36
APPENDIX:
Direct Examination of Doyle
O’BryantApp. 1
Cross Examination of Doyle
O’BryantApp. 2
Direct Examination of Frank
ZulafApp. 3
Cross Examination of Frank
ZulafApp. 9
Direct Examination of Mike
AustinApp. 13
Cross Examination of Mike
AustinApp. 15
Motion to Dismiss at Close of
State’s Evidence and RulingApp. 17
Motion to Dismiss at Close of
All Evidence and RulingApp. 22
Jury Charge ConferenceApp. 24
Jury Charge App. 25
Objections to Jury Charge and
RulingApp. 29
TABLE OF AUTHORITIES
CASES
In re Horne, 50 N.C. App. 97, 272 S.E.2d 905 (1980) 17
N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004) 7, 32
Stanton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999) 7, 31-32
State v. Baker, 213 N.C. 524, 196 S.E.2d 829 (1938) 9
State v. Bembery, 33 N.C. App. 31, 234 S.E.2d 33 (1977) 18
State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983) 32
State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284 (1977) 24-25
State v. Burton, 272 N.C. 687, 158 S.E.2d 883 (1968) 34
State v. Campbell, 311 N.C. 386, 317 S.E.2d 391 (1984) 33
State v. Carter, 122 N.C. App. 332, 470 S.E.2d 74 (1996) 14-15
State v. Chambers, 52 N.C. App. 713, 280 S.E.2d 175 (1981) 29
State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987) 11
State v. Coward, 296 N.C. 719, 252 S.E.2d 712 (1979) 12
State v. Craft, 32 N.C. App. 357, 232 S.E.2d 282 (1977) 19
State v. Crawford, 27 N.C. App. 414, 219 S.E.2d 248 (1975) 10, 19
State v. Evans, 1 N.C. App. 603, 162 S.E.2d 97 (1968) 10, 21
State v. Fair, 77 N.C. App. 641, 335 S.E.2d 783 (1985) 16
State v. Fink, 26 N.C. App. 430, 216 S.E.2d 473 (1975) 19
State v. Fleming, 350 N.C. 109, 512 S.E.2d 720 (1999) 33
State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966) 10-11, 18, 25
State v. Friend, 164 N.C. App. 430, 596 S.E.2d 275 (2004) 14
State v. Green, 310 N.C. 466, 312 S.E.2d 434 (1984) 12
State v. Greene, 289 N.C. 578, 223 S.E.2d 365 (1976) 13
State v. Hales, 32 N.C. App. 729, 233 S.E.2d 601 (1977) 18-19
State v. Hargett, 148 N.C. App. 688, 559 S.E.2d 282 (1980) 8
State v. Herring, 55 N.C. App. 230, 284 S.E.2d 764 (1981) 17
State v. Holland, 318 N.C. 602, 350 S.E.2d 56 (1986) 11-12
State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995) 30
State v. Jones and Woods, 227 N.C. 47, 40 S.E.2d 458 (1946) 9, 14
State v. Jones, 66 N.C. App. 197, 310 S.E.2d 643 (1984) 10 fn. 1
State v. Jones, 17 N.C. App. 54, 193 S.E.2d 314 (1972) 20
State v. Joyner, 301 N.C. 18, 269 S.E.2d 125 (1980) 8
State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002) 7, 32
State v. Knight, 261 N.C. 17, 134 S.E.2d 101 (1964) 14, 29
State v. Lewis, 281 N.C. 564, 189 S.E.2d 216 (1972) 20
State v. Locklear, 33 N.C. App. 647, 236 S.E.2d 376 (1977) 18
State v. Maines, 301 N.C. 669, 273 S.E.2d 289 (1981) 9, 12
State v. Marze, 22 N.C. App. 628, 207 S.E.2d 359 (1974) 26
State v. McAfee, 247 N.C. 98, 100 S.E.2d 249 (1957) 29
State v. McKinney, 25 N.C. App. 283, 212 S.E.2d 707 (1975) 25-26
State v. McNair, 36 N.C. App. 196, 243 S.E.2d 805 (1978) 34
State v. Mitchell, 109 N.C. App. 222, 426 S.E.2d 443 (1993) 15-16
State v. Mullinax, 263 N.C. 512, 139 S.E.2d 639 (1965) 10, 13
State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172 (2005) 7, 31
State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) 28, 32
State v. Odom, 99 N.C. 265, 393 S.E.2d 146
(1990)...... 10, 16
State v. Owens, 75 N.C. App. 513, 331 S.E.2d 311 (1985) 17
State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979) 8-9
State v. Pennell, 54 N.C. App. 252, 283 S.E.2d 397 (1982) 29
State v. Pierce, 36 N.C. App. 770, 245 S.E.2d 195 (1978) 18
State v. Shipp, 155 N.C. App. 294, 573 S.E.2d 721 (2002) 28, 32
State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978) 29
State v. Solomon, 24 N.C. App. 527, 211 S.E.2d 478 (1975) 20
State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967) 29-30
State v. Waller, 11 N.C. App. 666, 182 S.E.2d 196 (1971) 20-21
State v. Washington, 86 N.C. App. 235, 357 S.E.2d 419 (1987) 9
State v. Watson, 10 N.C. App. 168, 177 S.E.2d 771 (1970) 21
State v. Wilson, 315 N.C. 157, 337 S.E.2d 470 (1985) 30 fn. 2
State v. Wilson, 289 N.C. 531, 233 S.E.2d 311 (1976) 30
State v. Worsley, 336 N.C. 268, 443 S.E.2d 68 (1994) 30
State v. Wyatt, 271 N.C. 596, 157 S.E.2d 96 (1967) 13
Weil v. Herring, 207 N.C. 6, 175 S.E. 836
(1934)...... 24
STATUTES & ADMINISTRATIVE CODES
N.C. Gen. Stat. § 7A-27(b)...... 3
N.C. Gen. Stat. § 15A-1444(a)...... 3
N.C. Gen. Stat. § 8C-1, 401...... 33
N.C. Gen. Stat. § 8C-1, 402...... 33
OTHER AUTHORITES
N.C.P.I. 214.30...... 28
1
No. COA06-1505SEVENTEENTH (A) DISTRICT
COURT OF APPEALS OF NORTH CAROLINA
*******************************************
STATE OF NORTH CAROLINA)
)
V.)FROM ROCKINGHAMCOUNTY
)
ROBERT THOMAS WINCHESTER, Sr.)
****************************************************
DEFENDANT APPELLANT’S BRIEF
****************************************************
QUESTIONS PRESENTED
- WHETHER MR. WINCHESTER’S CONVICTIONS FOR BREAKING AND ENTERING, LARCENY AND POSSESSION OF STOLEN PROPERTY MUST BE VACATED BECAUSE THE EVIDENCE THAT HE HAD POSSESSED ANY STOLEN PROPERTY WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND THE TRIAL COURT COMMITTED ERROR AND ABUSE OF DISCRETION IN NOT GRANTING THE MOTION TO DISMISS AND IN SUBMITTING THESE CHARGES TO THE JURY UNDER THE DOCTRINE OF RECENT POSSESSION IN VIOLATION OF MR. WINCHESTER’S STATE AND FEDERAL RIGHTS?
- WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY ON BREAKING OR ENTERING, LARCENY PURSUANT TO A BREAKING OR ENTERING AND POSSESSION OF STOLEN PROPERTY PURSUANT TO A BREAKING OR ENTERING WHERE THE INSTRUCTIONS FAILED TO CHARGE HOW THERE WAS A BREAKING OR ENTERING IN VIOLATION OF MR. WINCHESTER’S STATE AND FEDERAL RIGHTS?
- WHETHER MR. WINCHESTER’S CONVICTIONS MUST BE VACATED BECAUSE THE TRIAL COURT COMMITTED ERROR OR PLAIN ERROR IN ADMITTING THE IRRELEVANT AND PREJUDICIAL HAMMER AND RELATED TESTIMONY INTO EVIDENCE AND IN NOT GRANTING THE MOTION TO DISMISS AND IN SUBMITTING THE CHARGES TO THE JURY WHERE THE EVIDENCE WAS INSUFFICIENT AS MATTER OF LAW AND FACT THAT THE HAMMER CONNECTED MR. WINCHESTER TO THE BREAK-IN IN VIOLATION OF HIS STATE AND FEDERAL RIGHTS?
STATEMENT OF THE CASE
On 1 May 2006, the Rockingham County Grand Jury issued a three-count indictment charging Defendant-Appellant, Robert Thomas Winchester, Sr., with felonious breaking and entering, felonious larceny, and felonious possession of stolen goods. (R p. 15) On 17 May 2006, Mr. Winchester rejected an offer to plea guilty to felony possession of stolen property in exchange for dismissal of the felonious breaking and entering and felonious larceny charges. (R pp. 17-19) This case came for trial before the Honorable Edwin G. Wilson, Jr., Senior Resident Superior Court Judge presiding, during the 3 July 2006 Criminal Session of Rockingham County. (R p. 1) Following jury selection and presentation of evidence, the jury on 5 July 2006 returned verdicts finding Mr. Winchester guilty of felonious breaking and entering, felonious larceny, and possession of stolen goods. (R p. 38) Judge Wilson entered judgment on that same day. Judge Wilson arrested judgment on the charge of possession of stolen goods. (R p. 43) Mr. Winchester’s remaining convictions were consolidated and he was sentenced to a term of 9 to 12 months’ imprisonment. (R pp. 44-47) On that same date in open court, Mr. Winchester entered notice of appeal. (T p.) The record on appeal was filed in the Court of Appeals on 13 November 2006, docketed on 29 November 2006, and mailed to the parties on 6 December 2006. The time for filing the Brief was extended until 5 February 2007.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Defendant appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) from a final judgment of the Rockingham County Superior Court.
STATEMENT OF THE FACTS
The evidence presented at the trial by the State tended to show that on 20 January 2006 at 3:15 a.m., the Reidsville Police Department (“RPD”) received an alarm call at the Sears on Freeway Drive. (T pp. 15, 18-19) There was a wooded area to the left side of and a big field directly in back of the store. (T pp. 19, 53-54, 64-65) Sergeant Doyle O’Bryant was less than three miles away, traveling north on Freeway Drive from South Park Drive, and was the first to check out the building Sears. (T pp. 15, 18, 20, 24) He did not see anyone on his way to the store. (T pp. 15-16) A glass door at the front of the store was busted open. (T pp. 15, 19, 34)
Between 3:15 and 3:30 a.m., the alarm service called the store owner, Frank Zulaf. (T p. 32-33, 39) Mr. Zulaf lives about two miles south of the Sears. (T p. 33) He did not see anyone on the roads on his way to the store. (T p. 33) When Mr. Zulaf arrived, he could hear the alarm going off and the police were already there. (T pp. 33-34, 39-40, 44)
About 3:41 a.m., RPD Sergeant John Pulliam of the K9 unit got to the Sears. (T pp. 25-26, 29) Traveling south on Freemont on his way to the store, approximately one eighth of a mile north of the Sears, Sgt. Pulliam saw someone he could not identify traveling north on a bicycle and notified Roland. (T pp. 27-30) Sgt. Pulliam did not see anyone else on his way to the Sears. (T p. 28)
Rockingham County Sheriff’s Department Deputy Charles Roberts was south of the Sears when he heard the alarm call. (T pp. 46, 52) As Deputy Roberts was heading to the Sears, he heard Sgt. Pulliam’s notification of a person on a bicycle. (T pp. 46, 52-53) Deputy Roberts drove past the Sears and saw someone pushing a bicycle across the parking lot of the First National Bank. (T pp. 46-47, 52) The bank was one half a mile or less from the Sears, near the intersection of Freeway Drive and Vance Street. (T pp. 22, 24, 31-32, 59-60) Deputy Roberts identified the man in court as Mr. Winchester. (T p. 47) Deputy Roberts patted him down and found a television remote and hammer. (T pp. 48, 52) Deputy Roberts did not see anyone else. (T p. 51)
RPD Sergeant Brian Oakley heard the alarm call and did not see anyone when he circled the area on his way to the store. (T pp. 54-55, 57-58) He then set up on Reid School Road behind the store in case anyone came through the woods. (T p. 55, 57) At some point, Sgt. Oakley went to the bank. (T p. 56) Deputy Roberts turned the remote control and the hammer over to him. (T pp. 50, 56-57)
Sgt. Pulliam ran a dog around the store but no track was located. (T pp. 19-20, 26, 29) After Sgt. Pulliam was done, Mr. Zulaf and Sgt. O’Bryant went inside the store. (T pp. 16, 34, 44) Mr. Zulaf listed two Craftsman pressure washers as missing. (T pp. 17, 34, 36, 64) The pressure washers had wheels and weighed somewhere between 50 to 80 pounds each. (T pp. 23-24, 36, 43-44, 72) After there was a radio call about the remote control found on Mr. Winchester, Mr. Zulaf listed one 13-inch Prima television and remote control as missing. (T pp. 17, 34-35, 38, 64)
RPD Detective Mike Austin arrived at the Sears about 4:00 a.m. (T pp. 61-62, 68-69, 73-74) He came from the east from Barnes Street and passed two cars on the way. (T pp. 62, 68-69) The two pressure washers were found about 50-75 feet away and 20 to 30 feet down in a drainage ditch that runs between Freeway Drive and the Sears’ parking lot and leads to the wooded area. (T pp. 20, 23, 28, 31, 26, 43, 45, 64, 72) The pressure washers were found just as Detective Austin came into the parking lot. (T p. 74) Sgt. O’Bryant didn’t recall seeing any footprints in the wooded area. (T pp. 21-22)
Detective Austin walked through the store and did not notice any evidence to collect or see a need to take fingerprints. (T pp. 21, 63-64, 67, 69-70, 74-75) Later, back at the police station, Sgt. Oakley turned the remote control and hammer over to Detective Austin. (T pp. 56-57, 66) The television was never found. (T pp. 20, 31, 40, 72)
After about an hour at the Sears, Sgt. O’Bryant went to the bank where Deputy Roberts was alone with Mr. Winchester. (T pp. 22-23)
The defense presented no evidence.
Additional facts are presented as they are relevant to the arguments below.
ARGUMENT
I.MR. WINCHESTER’S CONVICTIONS FOR BREAKING AND ENTERING,
LARCENY AND POSSESSION OF STOLEN PROPERTY MUST BE VACATED BECAUSE THE EVIDENCE THAT HE HAD POSSESSED ANY STOLEN PROPERTY WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTION TO DISMISS AND IN SUBMITTING THESE CHARGES TO THE JURY UNDER THE DOCTRINE OF RECENT POSSESSION IN VIOLATION OF MR. WINCHESTER’S STATE AND FEDERAL RIGHTS.
ASSIGNMENT OF ERROR Nos. 29-30, 35-38, 40-41, 46-49, 51-52, 57-60, 62, 69-71, 76-78, 84-85
R pp. 61, 63-65, 67-69, 71-73, 75-76, 77-78, 80-81
A.Statement of standards of review.
The standard of review of whether a motion to dismiss a charge was properly denied is de novo. In ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence. State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. Whether the evidence presented was substantial is a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of law are reviewed de novo. Stanton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999). Under a de novo standard of review, the reviewing court considers the matter anew and freely substitutes its own judgment for that of the lower court. N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).
B.The doctrine of recent possession did not apply where
the State did not establish the non-unique remote control as fruits of the crime.
The property that Mr. Winchester was supposed to have taken away was two pressure washers, one television, and one remote control. About 25 to 30 minutes after the alarm went off, Mr. Winchester was found half a mile away from the Sears in possession of a non-unique remote control. The pressure washers were found near the store. The television was never found. The State relied on the doctrine of recent possession to support the theory that Mr. Winchester was guilty of breaking and entering, larceny, and possession of stolen property. It was prejudicial error and an abuse of discretion for the Trial Court not to dismiss the charges.
At the close of the State’s evidence, Mr. Winchester’s motion to dismiss the charges was denied. (T pp. 78-82; see Appendix) The defense presented no evidence, and the renewed motion to dismiss at the close of all evidence was denied. (T pp. 83-84; see Appendix) Mr. Winchester argued that the doctrine of recent possession should not be applied and objected to the instructions. (T pp. 87, 99-100; see Appendix)
“The doctrine of recent possession raises what has been called a ‘presumption,’ but more accurately raises ‘a permissible inference that the possessor is the thief.’” State v. Hargett, 148 N.C. App. 688, 691, 559 S.E.2d 282 (quoting State v. Joyner, 301 N.C. 18, 28, 269 S.E.2d 125, 132 (1980)),disc. review improvidently allowed, 356 N.C. 423, 571 S.E.2d 583 (2002). “While the word ‘presumption’ is often used in this context, it is clear that recent possession is merely an evidentiary fact from which a jury may, but is not compelled, to infer that the defendant was indeed the thief.” State v. Patterson, 297 N.C. 247, 252, 254 S.E.2d 604, 608 (1979). “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.’” State v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981) (quoting State v. Baker, 213 N.C. 524, 526, 196 S.E.2d 829, 830 (1938)). In order to invoke this doctrine, the State must establish that: “(1) the goods were stolen; (2) the goods were in defendant’s custody and control to the exclusion of others; and (3) defendant possessed the property recently after the larceny.” State v. Washington, 86 N.C. App. 235, 249, 357 S.E.2d 419, 429 (1987), disc. review denied, 322 N.C. 485, 370 S.E.2d 235 (1988).
“In order to invoke the presumption that the possessor is the thief, the State must prove beyond a reasonable doubt each fact necessary to give rise to the inference or presumption.” State v. Maines, supra, 301 N.C. at 674, 273 S.E.2d at 293. “‘The identity of the fruits of the crime must be established before the presumption of recent possession can apply." State v. Jones and Woods, 227 N.C. 47, 49, 40 S.E.2d 458, 460 (1946). Whether the State can meet its burden as to the first element of the doctrine -- that the goods were stolen -- may depend on the type of goods in question:
It is not necessary that stolen property be unique to be identifiable. Often stolen property consists of items which are almost devoid of identifying features, such as coins and goods which are mass produced and nationally distributed under a brand name. When such items are the proceeds of a larceny their identity as being in the possession of the accused must necessarily be drawn from other facts satisfactorily proved.
State v. Crawford, 27 N.C. App. 414, 415, 219 S.E.2d 248, 248, disc. review denied, 288 N.C. 732, 220 S.E.2d 621 (1975).
In arguing for dismissal at trial in the instant case, the defense cited State v. Odom, 99 N.C. 265, 393 S.E.2d 146, disc. review denied, 327 N.C. 640, 399 S.E.2d 332 (1990), State v. Evans, 1 N.C. App. 603, 162 S.E.2d 97 (1968), State v. Foster, 268 N.C. 480, 151 S.E.2d 62 (1966), and State v. Mullinax, 263 N.C. 512, 139 S.E.2d 639 (1965).[1] Mr. Winchester relied primary on State v. Foster, supra, where there was evidence that the defendant possessed tires resembling stolen tires, but the tires could not be positively identified as the stolen goods:
Floyd Hinson looked at these six automobile tires and testified: “I would not swear that those six tires are the same tires that I had at my service station, but I’ll swear that they are the same size, tread design, and in the same order as those that got away from my service station.” It is a fact of common and general knowledge that Phillips Petroleum Company manufactures and sells thousands of Phillips “66” automobile tires throughout the United States similar to those that were stolen from Floyd Hinson's service station. Even if we concede that these six Phillips “66” automobile tires were stolen, there is no evidence that they were stolen from Floyd Hinson’s service station and were Floyd Hinson’s property. Consequently, the rule of recent possession of stolen property cannot apply to these six automobile tires.
Id. at 485-86, 151 S.E.2d at 66. The Supreme Court held this evidence was insufficient to uphold the larceny conviction. Whether the doctrine of recent possession can apply depends on such evidence as whether non-unique goods can be definitely identified as those that were stolen, or the non-unique goods cannot be identified but other identifiable goods are found in the defendant’s possession, or the defendant was placed at the scene by witnesses or such evidence as fingerprints. Even then, this additional evidence is not always sufficient for the doctrine of recent possession to apply.
In State v. Holland, 318 N.C. 602, 350 S.E.2d 56 (1986), overruled on other grounds, State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987), the Supreme Court held the State could not rely on the doctrine of recent possession where the victim has possessed a “non-unique, mass-produced [watch] distributed in national markets” of the type later seen in defendant’s possession. Holland, supra, 318 N.C. at 608, 250 S.E.2d at 60. Nor could the doctrine apply to a missing television or class ring that were never seen in the defendant’s possession. Id. at 609, 250 S.E.2d at 60-61.