Opinion
No. COA11–751.
2012-05-15
STATE of North Carolina v. Kenneth Wayne VAUGHN, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State. Kimberly P. Hoppin for defendant-appellant.
Appeal by defendant from judgment entered 20 August 2010 by Judge Shannon R. Joseph in Wake County Superior Court. Heard in the Court of Appeals 30 November 2011. Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State. Kimberly P. Hoppin for defendant-appellant.
GEER, Judge.
Defendant Kenneth Wayne Vaughn appeals from his conviction of three counts of breaking and entering a motor vehicle, one count of felony larceny, two counts of misdemeanor larceny, one count of felony possession of stolen goods, and two counts of misdemeanor possession of stolen goods. Defendant primarily contends on appeal that the trial court erred by not entering a written order when denying his motion to suppress. Because there was a material conflict in the evidence presented at the suppression hearing, prior decisions of this Court mandated that the trial court enter a written order with findings of fact resolving the conflict and conclusions of law based on those findings. The trial court's oral recitation of findings of fact was not sufficient. We, therefore, must remand for entry of a written order deciding the motion to suppress. We are not, however, persuaded by defendant's contentions relating to his trial and, therefore, hold that he received a trial free of prejudicial error.
Facts
The State's evidence tended to show the following facts. On 1 September 2009, Officer Robin Kovach of the Raleigh Police Department was on night shift duty, patrolling the Oakwood neighborhood in Raleigh, North Carolina. There had been several reports of motor vehicle break-ins in the neighborhood during the prior month.
At about 4:00 a.m., she stopped defendant while he was walking near Pace and East Streets in the Oakwood neighborhood. She asked to speak with him, and defendant said he did not know anything about the break-ins and had not seen anything related to any break-ins. When Officer Kovach asked for identification, defendant told her that he did not have any, but he gave her his name and birthdate. In response to her further questions, defendant acknowledged having a prior history of breaking and entering.
After verifying defendant's identity on her computer, Officer Kovach asked to search the book bag defendant was carrying. Defendant first told the officer that he would prefer she not search it. Officer Kovach then asked defendant if he had any weapons, and he showed her a knife on his belt. She also asked defendant if he had any tools in his bag and again asked defendant if she could look in it. At that point, defendant handed her the bag. Inside the bag, Officer Kovach found a GPS device, a camera, a jewelry box containing two diamond rings, two plastic bags full of change, and an iPod. With respect to the GPS unit, defendant said he was living with a friend on Sasser Street, and the unit belonged to the friend's girlfriend. He was keeping it because they did not want it to be stolen.
Officer Kovach set the items out on the hood of her patrol car and called Sergeant Thomas Vestal for assistance. After he arrived, he photographed the items in defendant's book bag. While examining the iPod, Sergeant Vestal found the name “Shelley Zuehlke” in it. When Officer Kovach questioned defendant about where he had gotten the items, defendant said that he had purchased the items for $60.00 from a man named Charles Parker in Moore Square park. On the camera in defendant's book bag, there was a picture of an African–American man whom defendant identified as “Charles.” Officer Kovach requested that they be allowed to keep the items found in defendant's bag, but defendant refused. The officers returned the book bag to defendant and let him go.
At about the same time, Ami Camarota and her husband were leaving for a wedding in Italy. When they got in their car around 4:00 a.m., they realized that their GPS receiver and iPod music player, which had been in the front of the vehicle, were gone. Because they had a 6:00 a.m. flight, they did not do anything to report the missing items.
Sergeant Jeffrey Taber, who was responsible for Raleigh Police Department officers working in Oakwood, came on shift at 6:00 a.m. After being briefed on defendant's encounter with Officer Kovach, he started efforts to locate Shelley Zuehlke and sent officers out to check whether any break-ins had occurred in the area where Officer Kovach encountered defendant. Sergeant Taber, Officer Zachary Turner, and Officer Jeremy Banks then went to try to find defendant at 801 Sasser Street.
At around 8:45 a.m., the officers saw defendant walking away from Sasser Street. The officers approached defendant and asked if he still had the items that he had shown to Officer Kovach. At first, defendant said he had given the items to a friend to dispose of because he had heard the items were stolen. Then, he told the officers that he had bought the property in a store, and it belonged to him. Finally, he told them that he had given the items to a man in Moore Square named Charlie Parker.
In the meantime, that same morning, Ms. Zuehlke went out to her car to take her daughter to school. She found her belongings strewn about the car's floor board and ultimately realized that her iPod, checkbook, Swiss army knife, two iPod chargers, turquoise earrings, some money, and her bike rack keys were missing. After taking her daughter to school, Ms. Zuehlke called the police to report the theft. While she was on the phone, she received a call from another officer asking if her iPod had been stolen. Officers immediately came to her house and took an inventory of what she had determined was missing.
Back at 801 Sasser Street, defendant asked if he could leave. However, based on the interview with Ms. Zuehlke, Sergeant Taber ordered defendant arrested. After the arrest, Officer Turner remained at 801 Sasser Street to attempt to get consent to search the house. When Officer Turner saw William Erwin come out of one of the apartments at 801 Sasser Street, the officer approached Mr. Erwin, who said he lived in that apartment and that defendant had been staying on his couch. After Officer Turner explained that defendant was being investigated for potential theft, Mr. Erwin gave permission for the police to search his apartment.
Officer Turner searched the apartment with the help of two other officers. Mr. Erwin pointed out a closet where defendant stored his belongings. In the closet, officers found, among other items, two iPods, two GPS units, and a diamond ring.
According to Mr. Erwin, defendant had left the apartment the night before at about 10:30 to 11:00 p.m. Although Mr. Erwin had not seen defendant since, when Mr. Erwin woke up at 9:00 a.m., he noticed a laptop on his desk that he had never seen before. In addition, when the officers searched the closet, there was a bag that he also had not seen before.
Tara Williams was awakened by the police that morning after they had determined that she was the owner of one of the GPS units found in the closet. The police showed Ms. Williams other items that had been recovered from the closet, and she identified an old diamond engagement ring and a bag of change as belonging to her. The officers fingerprinted Ms. Williams' car, and two of the fingerprints found were identified as being from defendant. Ms. Williams' ring had been appraised for $2,200.00, there was between $8.00 and $10.00 in change in the bag that was recovered, and she had paid $550.00 for the GPS unit that was returned to her.
The police returned Ms. Zuehlke's iPod and a flashlight she had purchased for her car. Ms. Zuehlke was, however, forced to change her bank accounts because of the loss of her checkbook. Ms. Zuehlke paid around $250.00 for her iPod, $15.00 for her checks, $30.00 for each iPod charger, $100.00 for her earrings, around $160.00 for her Swiss army knife, and $8.00 for her flashlight. Although her bike rack keys were replaced for free, they were worth around $30.00. Finally, Ms. Zuehlke lost some amount less than $10.00 in change.
The police determined that one of the GPS units belonged to the Camarotas. An officer called the Camarotas upon their return from Italy and returned the GPS unit to them together with their missing iPod. Ms. Camarota believed she had paid $325.00 for the GPS unit and that her iPod was worth around $100.00.
Defendant was indicted on 30 November 2009 for three counts of breaking and entering a motor vehicle, three counts of larceny, and three counts of possession of stolen goods. Defendant was also indicted for being a habitual felon. Defendant filed a motion to suppress all evidence obtained as a result of the search of defendant's person and book bag. The trial court denied the motion, and the jury convicted defendant of (1) breaking and entering a motor vehicle, misdemeanor larceny, and misdemeanor possession of stolen goods with respect to the Zuehlke property; (2) breaking and entering a motor vehicle, misdemeanor larceny, and misdemeanor possession of stolen goods with respect to the Camarota property; and (3) breaking and entering a motor vehicle, felony larceny, and felony possession of stolen goods with respect to the Williams property. Additionally, the jury found that defendant was a habitual felon.
The trial court arrested judgment on the possession of stolen goods charges and sentenced defendant to a single presumptive-range term of 144 to 182 months imprisonment on all the remaining counts. Defendant timely appealed to this Court.
I
Defendant first contends that the trial court erred in only orally denying his motion to suppress and not entering a written order. N.C. Gen.Stat. § 15A–977(f) (2011) requires in relevant part that when a suppression hearing is held, “[t]he judge must set forth in the record his findings of facts and conclusions of law.” This Court has interpreted that provision as requiring a written order “unless (1) the trial court provides its rationale from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing.” State v. Williams, 195 N.C.App. 554, 555, 673 S.E.2d 394, 395 (2009). “If a reviewing court concludes that either of the criteria is not met, then a trial court's failure to make findings of fact ..., contrary to the mandate of section 15A–977(f), is fatal to the validity of its ruling and constitutes reversible error.” State v. Baker, ––– N.C.App. ––––, ––––, 702 S.E.2d 825, 829 (2010).
Defendant moved to suppress all evidence obtained as a result of the search of defendant's person and book bag. Both Officer Kovach and defendant testified at the hearing on the motion to suppress. Officer Kovach testified essentially consistent with the above statement of facts. Specifically, she said that while defendant initially refused to allow her to search his book bag, he later consented after she asked if he had any weapons or tools: “I asked again, I said do you mind if I look in it really quick, and he said no, and he handed it to me.”
At the motion to suppress hearing, defendant testified that he had refused to allow Officer Kovach to search his bag and that he was “almost positive that [he] didn't consent.” Defendant asserted that he did not hand his bag to Officer Kovach, but rather she took it from his shoulder. Defendant also testified that Officer Kovach told him that he could be restrained for up to 72 hours for not having identification and that he believed that he “was being placed under arrest, because [Officer Kovach] had reached for her cuffs.” According to defendant, after Sergeant Vestal arrived at the scene, defendant asked him about Officer Kovach's having searched his bag. Defendant claimed Sergeant Vestal told him “something about that I was lucky they didn't get me for ... some charge” and continued questioning him about the materials found in his bag. Defendant believed he was going to jail if he did not let the officers search his bag.
At the conclusion of the hearing, the trial court made the following oral findings of fact from the bench:
THE COURT: Okay. Thank you. In the motion to suppress, the Court finds that the motion was timely and in proper form. The Court also finds that the State has met its burden and shown by a preponderance of the evidence under the totality of circumstances that the consent was not the product of coercion and it was voluntary.
The Court has had the opportunity to observe the demeanor of the witnesses and the directness in answering, as well as the specificity of the answers to the questions given by both the officer and the defendant.
And the Court finds that the defendant was not threatened or otherwise intimidated, and that the officer asked twice for consent to search the bag. First time the defendant refused; the second time the defendant agreed, and that consent was given voluntary [sic].
At no time was the defendant arrested, placed under arrest, restrained or detained, remained free to move around and was not in handcuffs, nor did the officer threaten to handcuff or restrain him or detain him.
And the Court will enter a written order reflecting this ruling or a more complete written order reflecting this ruling.
Despite the trial court's intention to file a written order, apparently, one was never filed.
As the trial court's oral ruling indicates, there was a conflict in the evidence regarding whether defendant consented to the book bag search and whether the officers arrested, restrained, or detained defendant or threatened to arrest, restrain, or detain him. There can be no question that the conflict regarding consent was material since the constitutionality of the search hinged on defendant's consent. See State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997) (“[A] search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given.”).
Further, even if defendant did consent, it is well established that a trial court, in determining whether that consent was voluntary, must decide whether a defendant “was threatened or offered any promises or inducements in exchange for his consent to search.” State v. Austin, 320 N.C. 276, 291, 357 S.E.2d 641, 650 (1987). Consequently, the dispute regarding what the officers said to defendant about their ability to detain or arrest him was material to the voluntariness of any consent.
Because there was a material conflict in the testimony, the trial court was required to enter a written order. Although the State cites State v. Shelly, 181 N.C.App. 196, 205, 638 S.E.2d 516, 523 (2007) (emphasis added), arguing that it suggests that no written order was necessary, this Court based its decision in Shelly on the fact that “the trial court provided its rationale from the bench and there were no material conflicts in the evidence.”
We must, therefore, remand for entry of a written order resolving defendant's motion to suppress. As this Court explained in State v. Neal, –––N.C.App. ––––, ––––, 709 S.E.2d 463, 470–71 (2011), if the trial court, after making the necessary written findings of fact addressing all material conflicts in the evidence and making conclusions of law based on those findings, “determines that the motion to suppress was properly denied, then defendant would not be entitled to a new trial because there would have been no error in the admission of the evidence, and his convictions would stand. If, however, the court determines that the motion to suppress should have been granted, defendant would be entitled to a new trial.” We do not address defendant's further contentions regarding the motion to suppress as any error in the oral ruling may be addressed in the written order. In the event the trial court denies defendant's motion to suppress on remand, we now address defendant's remaining contentions relating to his trial.
II
Defendant contends that the trial court committed plain error by instructing the jury on a theory of felony larceny not alleged within the indictments. It is well established that the plain error rule
“is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the ... mistake had a probable impact on the jury's finding that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir .1982)).
The first question in the plain error analysis is whether the trial court committed any error at all. The indictment regarding the property of Ms. Williams alleged in relevant part:
II. And the jurors for the State upon their oath present that on or about September 1, 2009, in Wake County, the defendant named above unlawfully, willfully and feloniously did steal, take, and carry away a Garmin GPS unit, and a one (1) carat diamond ring, the personal property of Tara Elisha Williams, having a value of $3,500.00, pursuant to the commission of the felonious breaking and entering described in the charge above. This act was done in violation of N.C.G.S. 14–72(b)(2).
Each of the other indictments contained identical language, substituting only the name of the property owner, the specific items stolen, and the value of those items. The other indictments alleged a total stolen property value of $300.00 for Shelley Zuehlke and a total stolen property value of $500.00 for Stefano Camarota.
N.C. Gen.Stat. § 14–72 (2011) sets out the circumstances under which a larceny becomes a felony. Under N.C. Gen.Stat. § 14–72(a), “[l]arceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony.” N.C. Gen.Stat. § 14–72(b) lists the circumstances under which larceny is a felony without regard to the value of the property stolen. The subsection cited in the indictments, N.C. Gen.Stat. § 14–72(b)(2), makes the larceny a felony if “[c]ommitted pursuant to a violation of G.S. 14–51, 14–53, 14–54, 14–54.1, or 14–57”—various crimes involving burglary or breaking and entering into buildings.
The breaking and entering referenced in the indictment was the breaking and entering of a motor vehicle under N.C. Gen.Stat. § 14–56 (2011), not one of the crimes included in N.C. Gen.Stat. § 14–72(b)(2). The trial court did not address whether the larceny could be a felony under N.C. Gen.Stat. § 14–72(b)(2), but rather instructed the jury pursuant to N.C. Gen.Stat. § 14–72(a), requiring the jurors to decide whether the stolen goods had a value of more than $1,000.00. Defendant argues that the State was bound by the allegation in the indictment, and the trial court erred in not instructing the jury that it had to decide whether the larceny was committed pursuant to one of the crimes set out in N.C. Gen.Stat. § 14–72(b)(2).
This Court has held that “although an indictment may cite to the wrong statute, when the body of the indictment is sufficient to properly charge defendant with an offense, the indictment remains valid and the incorrect statutory reference does not constitute a fatal defect.” State v. Mueller, 184 N.C.App. 553, 574, 647 S.E.2d 440, 455 (2007); see also State v. McCoy, 79 N.C.App. 273, 276–77, 339 S.E.2d 419, 421–22 (1986) (holding indictment alleging larceny was pursuant to burglary and that value of stolen property exceeded $1,000.00 was sufficient to sustain conviction for felony larceny under either N.C. Gen.Stat. §§ 14–72(a) or 14–72(b)).
Here, the Williams indictment, in addition to citing N.C. Gen.Stat. § 14–72(b)(2), alleged that the stolen property was worth $3,500.00. The allegations were, therefore, sufficient to allege a violation of N.C. Gen.Stat. § 14–72(a), the theory on which the trial court instructed the jury. Defendant does not dispute that the State's evidence was sufficient to support the instruction. Therefore, the trial court did not commit error—to say nothing of plain error—in instructing the jury pursuant to N.C. Gen.Stat. § 14–72(a).
Defendant points to several cases under which both our Supreme Court and this Court have held that “ ‘it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.’ “ State v. Tucker, 317 N.C. 532, 537–38, 346 S.E.2d 417, 420 (1986) (quoting State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980). Since, in this case, there is no variance between the indictment and the jury instructions, defendant's cases are inapposite.
Likewise, defendant has failed to show plain error with respect to the larceny of the property of Ms. Zuehlke and Mr. Camarota. The indictments alleged and the State's evidence showed that the value of the stolen property was less than $1,000.00. The jury was only instructed on misdemeanor larceny, and defendant was found guilty of misdemeanor larceny. Defendant has failed to explain in what way he was prejudiced even if the indictment alleged only the felony theory of N.C. Gen.Stat. § 14–72(b)(2). Defendant has not, therefore, shown plain error as to the Zuehlke and Camarota indictments.
III
Finally, defendant contends that the trial court erred in denying defendant's motion to dismiss the charges of breaking and entering a motor vehicle, larceny, and possession of stolen goods with regard to Mr. Camarota's property. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
A motion to dismiss should be denied if “there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981) (internal quotations marks omitted). In ruling on a motion to dismiss, all evidence must be considered in the light most favorable to the State, giving the State the benefit of all reasonable inferences which can be drawn from the evidence. State v. Rasor, 319 N.C. 577, 585, 356 S.E.2d 328, 333 (1987).
The elements of possession of stolen property are: “(1) possession of personal property; (2) which has been stolen; (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen; and (4) the possessor acting with a dishonest purpose.” State v. Perry, 305 N.C. 225, 233, 287 S.E .2d 810, 815 (1982), overruled in part on other grounds by State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010). If the value of the property is not more than $1,000.00, then the offenses are Class I misdemeanors. N.C. Gen.Stat. § 14–72(a).
“ ‘[P]ossession [of stolen goods] ... may be either actual or constructive. Constructive possession exists when the defendant, while not having actual possession [of the goods], ... has the intent and capability to maintain control and dominion over the[m].’ “ State v. Szucs, ––– N.C.App.––––, ––––, 701 S.E.2d 362, 365 (2010) (quoting State v. Phillips, 172 N.C.App. 143, 146, 615 S .E.2d 880, 882–83 (2005)). Here, the State proceeded on a theory of constructive possession.
“A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.” State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986). When a defendant does not have exclusive control over the premises where the property has been found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession. State v. Marshall, 206 N.C.App. 580, 583, 696 S.E.2d 894, 897 (2010).
Although cases “addressing constructive possession have tended to turn on the specific facts presented[,]” State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009),
[i]ncriminating circumstances relevant to constructive possession include evidence that defendant: (1) owned other items found in proximity to the contraband; (2) was the only person who could have placed the contraband in the position where it was found; (3) acted nervously in the presence of law enforcement; (4) resided in, had some control of, or regularly visited the premises where the contraband was found; (5) was near contraband in plain view; or (6) possessed a large amount of cash.
State v. Alston, 193 N.C.App. 712, 716, 668 S.E.2d 383, 386 (2008) (internal quotation marks omitted), aff'd per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009).
Here, Mr. Camarota's GPS unit and iPod were found in a closet where defendant kept his belongings. Although he did not have exclusive control over that closet, the State presented sufficient evidence of other incriminating circumstances. The Camarota property was found with an iPod owned by Ms. Zuehlke and a GPS unit and diamond ring owned by Ms. Williams. Defendant had earlier the same day been in actual possession of Ms. Zuehlke's iPod. In addition, defendant's fingerprints were found on the car from which Ms. Williams' property was stolen.
Further, the State presented evidence that defendant's belongings were kept separate from the cleaning supplies and other common items found in the closet, and Mr. Erwin, who also had access to the closet, had not seen the bag in the closet prior to the night when the items were stolen. The State also offered evidence that defendant was acting nervously around the police and gave differing and inconsistent explanations for how he happened to have the items in his book bag. We hold that this evidence was sufficient to allow the jury to find that defendant constructively possessed Mr. Camarota's property.
Turning to the charges of breaking and entering and larceny, the State relied upon the doctrine of recent possession. The doctrine of recent possession requires that the State prove “(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) (internal citations omitted).
Defendant argues that the State failed to prove either possession or recency, the third element. We have already held that the State presented sufficient evidence of possession for purposes of constructive possession and that conclusion applies equally with respect to the doctrine of recent possession. See State v. Lee, ––– N.C.App. ––––, ––––, 713 S.E.2d 174, 178 (2011) (finding sufficient evidence of possession for doctrine of recent possession when duffel bag in which stolen goods were found was identified as defendant's, bag contained other personal items belonging to defendant, and other items in bag were identified by witness as being related to robbery); State v. Walker, 86 N.C.App. 336, 341, 357 S.E.2d 384, 387 (1987) (finding sufficient evidence to apply doctrine of recent possession when defendant knew contraband was in trunk of car in which he was passenger, he was seen near contraband, and defendant's personal possessions were found in close proximity to stolen items), aff'd per curiam,321 N.C. 593, 364 S.E.2d 141 (1988).
With respect to the requirement that the defendant possess the property recently after the larceny, defendant points to State v. Hamlet, 316 N.C. 41, 340 S.E.2d 418 (1986). In Hamlet, our Supreme Court examined whether the doctrine of recent possession should apply when a television and other property the defendant was charged with stealing were last seen by the owner 30 days before they were found in defendant's possession. Id. at 45–46, 340 S.E.2d at 421. In holding that the 30–day time period precluded application of the doctrine, the Court explained: “[I]f the stolen property is of a type normally and frequently traded in lawful channels, a relatively brief time interval between the theft and the finding of an accused in possession is sufficient to preclude an inference of guilt from arising.” Id. at 44, 46, 340 S.E.2d at 420, 421.
Here, however, Ms. Camarota testified that she and her husband discovered that the GPS unit and iPod were missing from their only vehicle at about 4:00 a.m. on 1 September 2009. The two items were recovered about five hours later during the search of the apartment where defendant was staying. Drawing all inferences in the State's favor, as required by the standard of review, we hold that a reasonable juror could find that the items were likely stolen in the early morning hours of 1 September 2009. The evidence that the GPS unit and the iPod were found in defendant's constructive possession only hours later is sufficient evidence to support the doctrine of recent possession. The trial court, therefore, properly denied the motion to dismiss the charges related to the property owned by Mr. Camarota.
No error in part; remanded in part. Judges ROBERT C. HUNTER and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).