{ "id": 9127103, "name": "STATE OF NORTH CAROLINA v. TOMMY LEE OSBORNE", "name_abbreviation": "State v. Osborne", "decision_date": "2002-03-19", "docket_number": "No. COA01-271", "first_page": "235", "last_page": "248", "citations": [ { "type": "official", "cite": "149 N.C. App. 235" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "312 S.E.2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "703", "parenthetical": "evidence was sufficient to support submission of doctrine of recent possession based upon circumstantial evidence of defendant's constructive possession of stolen property" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 122", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525781 ], "year": 1984, "pin_cites": [ { "page": "127", "parenthetical": "evidence was sufficient to support submission of doctrine of recent possession based upon circumstantial evidence of defendant's constructive possession of stolen property" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0122-01" ] }, { "cite": "477 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867553, 867685, 867592, 867638, 867704 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0636-04", "/nc/344/0636-03", "/nc/344/0636-02", "/nc/344/0636-01", "/nc/344/0636-05" ] }, { "cite": "473 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "371" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913052 ], "year": 1996, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0276-01" ] }, { "cite": "546 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "569" }, { "page": "569", "parenthetical": "citations omitted" }, { "page": "569", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 516", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135812 ], "year": 2001, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0516-01" ] }, { "cite": "543 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155809, 1155653, 1155879, 1155597, 1155967 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0476-05", "/nc/351/0476-02", "/nc/351/0476-01", "/nc/351/0476-03", "/nc/351/0476-04" ] }, { "cite": "524 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239967 ], "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0413-01" ] }, { "cite": "537 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "828" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12132716 ], "year": 2000, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0600-01" ] }, { "cite": "354 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "330", "parenthetical": "indictment sufficient to charge larceny where it contained language that the defendant \" 'did unlawfully, wilfully, and feloniously steal, take, and carry away another's personal property' \"" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 81", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169617 ], "year": 1987, "pin_cites": [ { "page": "89", "parenthetical": "indictment sufficient to charge larceny where it contained language that the defendant \" 'did unlawfully, wilfully, and feloniously steal, take, and carry away another's personal property' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0081-01" ] }, { "cite": "373 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526474 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0686-01" ] }, { "cite": "188 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 456", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550255 ], "year": 1972, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0456-01" ] }, { "cite": "389 S.E.2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307169, 5305538, 5308853, 5309078, 5308598 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0265-03", "/nc/326/0265-05", "/nc/326/0265-04", "/nc/326/0265-01", "/nc/326/0265-02" ] }, { "cite": "385 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521015 ], "year": 1989, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0209-01" ] }, { "cite": "411 S.E.2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "632" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 83", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521386 ], "year": 1992, "pin_cites": [ { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0083-01" ] }, { "cite": "369 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517600 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0506-01" ] }, { "cite": "270 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "480", "parenthetical": "victim's opinion testimony as to fair market value of stolen goods sufficient evidence upon which to submit charge of felonious larceny to jury" } ], "opinion_index": 0 }, { "cite": "301 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564463 ], "year": 1980, "pin_cites": [ { "page": "160", "parenthetical": "victim's opinion testimony as to fair market value of stolen goods sufficient evidence upon which to submit charge of felonious larceny to jury" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0153-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(a)", "parenthetical": "larceny is felonious where value of stolen goods is at least $1,000.00" } ], "opinion_index": 0 }, { "cite": "249 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "428", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564777 ], "year": 1978, "pin_cites": [ { "page": "103", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0101-01" ] }, { "cite": "478 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "191", "parenthetical": "holding act of larceny complete as soon as defendant removed bag of money from below cash register" } ], "opinion_index": 0 }, { "cite": "345 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53904 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/345/0146-01" ] }, { "cite": "557 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "576", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 29", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9363550 ], "year": 2001, "pin_cites": [ { "page": "41", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0029-01" ] }, { "cite": "145 L. Ed. 2d 681", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "528 U.S. 1084", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9662082, 9662211, 9662499, 9662246, 9662407, 9662603, 9662126, 9662289, 9662367, 9662455, 9662552, 9662169, 9662042, 9662335 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/528/1084-02", "/us/528/1084-05", "/us/528/1084-12", "/us/528/1084-06", "/us/528/1084-10", "/us/528/1084-14", "/us/528/1084-03", "/us/528/1084-07", "/us/528/1084-09", "/us/528/1084-11", "/us/528/1084-13", "/us/528/1084-04", "/us/528/1084-01", "/us/528/1084-08" ] }, { "cite": "516 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "118", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132292 ], "year": 1999, "pin_cites": [ { "page": "427", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0411-01" ] }, { "cite": "273 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "294" }, { "parenthetical": "citation omitted" }, { "parenthetical": "emphasis added" }, { "page": "294" } ], "opinion_index": 0 }, { "cite": "301 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570016 ], "year": 1981, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0669-01" ] }, { "cite": "213 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "419", "parenthetical": "constructive possession satisfied where the stolen property is \" '... \"in any place where it is manifest it must have been put by the act of the [defendant]\" ' \" (citations omitted)" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 453", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554507 ], "year": 1975, "pin_cites": [ { "page": "455", "parenthetical": "constructive possession satisfied where the stolen property is \" '... \"in any place where it is manifest it must have been put by the act of the [defendant]\" ' \" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0453-01" ] }, { "cite": "556 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "311", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377653 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "11", "parenthetical": "citation omitted" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0001-01" ] }, { "cite": "557 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "147" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 766", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381593 ], "year": 2001, "pin_cites": [ { "page": "770" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0766-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "270", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "552", "parenthetical": "citation omitted" }, { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0549-01" ] }, { "cite": "340 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "316 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701428 ], "year": 1986, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0087-01" ] }, { "cite": "553 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138472, 138348, 138517, 138555, 138431 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0073-02", "/nc/354/0073-05", "/nc/354/0073-01", "/nc/354/0073-04", "/nc/354/0073-03" ] }, { "cite": "547 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "104" }, { "page": "106" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11435414 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "487" }, { "page": "490-91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0485-01" ] }, { "cite": "470 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "79" }, { "page": "79", "parenthetical": "trial court did not err in instructing on doctrine of recent possession and constructive possession" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917035 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "339" }, { "page": "339", "parenthetical": "trial court did not err in instructing on doctrine of recent possession and constructive possession" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0332-01" ] }, { "cite": "211 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "480" } ], "opinion_index": 1 }, { "cite": "24 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552687 ], "year": 1975, "pin_cites": [ { "page": "529" } ], "opinion_index": 1, "case_paths": [ "/nc-app/24/0527-01" ] }, { "cite": "18 S.E.2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "701-02", "parenthetical": "trial court erred in instructing the jury on recent possession where the goods were found in the defendant's cedar chest in an apartment she shared with two other individuals and there was no evidence the defendant placed the goods there or knew of them" } ], "opinion_index": 1 }, { "cite": "221 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625658 ], "year": 1942, "pin_cites": [ { "page": "23-24", "parenthetical": "trial court erred in instructing the jury on recent possession where the goods were found in the defendant's cedar chest in an apartment she shared with two other individuals and there was no evidence the defendant placed the goods there or knew of them" } ], "opinion_index": 1, "case_paths": [ "/nc/221/0022-01" ] }, { "cite": "199 S.E. 920", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "pin_cites": [ { "page": "921", "parenthetical": "recent possession did not apply when there was no evidence the defendant was in possession of his truck at the time the stolen items were found or at the time the items were placed there" } ], "opinion_index": 1 }, { "cite": "214 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631973 ], "year": 1938, "pin_cites": [ { "page": "566", "parenthetical": "recent possession did not apply when there was no evidence the defendant was in possession of his truck at the time the stolen items were found or at the time the items were placed there" } ], "opinion_index": 1, "case_paths": [ "/nc/214/0564-01" ] }, { "cite": "34 L. Ed. 2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 1 }, { "cite": "409 U.S. 1046", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468673, 6468578, 6468425, 6468331, 6468140, 6468498, 6468915, 6468852, 6467924, 6468025, 6468765 ], "year": 1972, "opinion_index": 1, "case_paths": [ "/us/409/1046-08", "/us/409/1046-07", "/us/409/1046-05", "/us/409/1046-04", "/us/409/1046-03", "/us/409/1046-06", "/us/409/1046-11", "/us/409/1046-10", "/us/409/1046-01", "/us/409/1046-02", "/us/409/1046-09" ] }, { "cite": "189 S.E.2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "219" } ], "opinion_index": 1 }, { "cite": "281 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575634 ], "year": 1972, "pin_cites": [ { "page": "567" } ], "opinion_index": 1, "case_paths": [ "/nc/281/0564-01" ] }, { "cite": "151 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "67" } ], "opinion_index": 1 }, { "cite": "268 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563197 ], "year": 1966, "pin_cites": [ { "page": "487" } ], "opinion_index": 1, "case_paths": [ "/nc/268/0480-01" ] }, { "cite": "273 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "293", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "301 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570016 ], "year": 1981, "pin_cites": [ { "page": "674", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/301/0669-01" ] } ], "analysis": { "cardinality": 1049, "char_count": 33912, "ocr_confidence": 0.744, "pagerank": { "raw": 2.6993166443568917e-07, "percentile": 0.8282743511301238 }, "sha256": "17db1aca15cd7c71007bc9054314467c4181a66ab0f4872951b25597e3ad0aa6", "simhash": "1:a769542976bdac58", "word_count": 5505 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TYSON concurs.", "Judge GREENE dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. TOMMY LEE OSBORNE" ], "opinions": [ { "text": "HUNTER', Judge.\nTommy Lee Osborne (\u201cdefendant\u201d) appeals a conviction for felonious larceny. We hold defendant has failed to show prejudicial error.\nThe evidence presented at trial tended to establish that in late April 1999, the victim, Thomas Klostermeyer, received a telephone call from his minister asking him to provide defendant a place to stay. Klostermeyer agreed, and defendant moved into Klostermeyer\u2019s one bedroom apartment on Tuesday, 27 April 1999. Klostermeyer provided defendant with a key to the apartment, and testified defendant had \u201cthe run of the apartment.\u201d Klostermeyer allowed defendant to sleep in the living room area. Defendant brought with him several garbage bags full of things and a duffel bag which he stored behind a chair in the living room. No one other than defendant and Klostermeyer had access to the apartment.\nKlostermeyer testified he last saw defendant at approximately 1:00 p.m. Friday afternoon, 30 April 1999, when Klostermeyer left the apartment. When Klostermeyer returned home that evening, he began to discover that several of his possessions were missing. He notified the police, and on Saturday, 1 May 1999, he went to the police station to file a report. Upon returning home, Klostermeyer discovered more items missing.\nOn Sunday morning, 2 May 1999, Klostermeyer changed the locks to his apartment. Defendant\u2019s bags were still behind a chair in the living room. Later that day, defendant attempted to enter the apartment, but found that his key no longer worked. Klostermeyer informed defendant that several of his possessions were missing, and that the police had instructed him to notify them when defendant returned to the apartment. Defendant, who appeared to be intoxicated, left the apartment. Klostermeyer notified the police.\nOn Monday, 3 May 1999, the police located defendant at the Hospitality House, a homeless shelter in Boone, North Carolina. Defendant told the police that if any of Klostermeyer\u2019s possessions were in his bags, it was because Klostermeyer put them there. The police brought defendant to Klostermeyer\u2019s apartment and instructed him to open his bags. Klostermeyer\u2019s missing possessions were in defendant\u2019s bags. Defendant testified on his own behalf, maintaining that Klostermeyer placed the items in his bags in an effort to frame him because Klostermeyer did not believe defendant had served enough prison time for a previous sexual abuse conviction.\nOver defendant\u2019s motion to dismiss the larceny indictment, the trial court submitted to the jury possible verdicts of felonious larceny, non-felonious larceny, and not guilty. On 18 August 2000, the jury returned a verdict of guilty of felonious larceny. The trial court entered judgment thereon, and sentenced defendant as an habitual felon to a minimum of 100 and a maximum of 129 months in prison.\nDefendant appeals his conviction for felonious larceny, arguing that the trial court erred in (1) instructing the jury on the doctrine of recent possession; (2) instructing the jury on constructive possession; (3) denying his motion to dismiss the larceny charge for lack of substantial evidence; (4) denying his motion to quash the larceny indictment for failure to set forth the essential elements of larceny; and (5) denying his motion to dismiss the indictment due to a fatal variance between the date alleged on the indictment and the evidence presented at trial.\nI.\nDefendant first argues the trial court erred in instructing the jury on the doctrine of recent possession because the evidence was insufficient to support the instruction. We disagree.\nThe trial court\u2019s jury instructions on possible theories of conviction must be supported by the evidence. State v. Carter, 122 N.C. App. 332, 339, 470 S.E.2d 74, 79 (1996). \u201cThe doctrine of recent possession allows the jury to infer that the possessor of certain stolen property is guilty of larceny.\u201d State v. Pickard, 143 N.C. App. 485, 487, 547 S.E.2d 102, 104, disc. review denied, 354 N.C. 73, 553 S.E.2d 210 (2001). Under this doctrine, the State must show three things: (1) that the property was stolen; (2) that defendant had possession of this same property; and (3) that defendant had possession of this property so soon after it was stolen and under such circumstances as to make it unlikely that he obtained possession honestly. Id.\nIn this case, defendant argues that the trial court should not have instructed the jury as to recent possession because the evidence failed to establish the element of possession. He contends the evidence failed to show that he had the requisite intent and capability to control the property in Klostermeyer\u2019s apartment.\nIn order to prove the element of possession under this doctrine, the State need not prove actual physical possession of the property. State v. Perry, 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986). Rather, \u201c[p]roof of nonexclusive, constructive possession is sufficient. . . . Constructive possession exists when the defendant, \u2018while not having actual possession, . . . has the intent and capability to maintain control and dominion over\u2019 the [property].\u201d State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (citation omitted). \u201cWhere sufficient incriminating circumstances exist, constructive possession of the [property] may be inferred even where possession of the premises is nonexclusive.\u201d State v. Kraus, 147 N.C. App. 766, 770, 557 S.E.2d 144, 147 (2001). Moreover, this Court has previously emphasized that \u201c \u2018constructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury. \u201d State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001) (citation omitted) (emphasis omitted).\nHere, the trial court instructed the jury on the theory of constructive possession as a means to satisfy the element of possession. We hold that the evidence on the element of possession, viewed in the totality of the circumstances, was sufficient to warrant the trial court\u2019s instruction on the doctrine of recent possession. Klostermeyer\u2019s testimony established that defendant moved into his apartment, where he lived alone, on a Tuesday evening. He testified he gave defendant a key to the apartment on that Tuesday, and that defendant was given \u201cthe run of the apartment.\u201d Klostermeyer testified that defendant was not working at the time. He stated defendant remained in the apartment for four days, until he \u201cdisappeared\u201d on Friday evening. Klostermeyer last saw defendant when Klostermeyer left his apartment on Friday at approximately 1:00 p.m. He returned home around 5:30 p.m. and began to discover that various items of his personal property were missing later Friday evening. He stated that the last time he saw some of his possessions was on Monday night, some he last saw on Wednesday night, and some he last saw on Thursday night. He further stated that he also noticed some items were missing on Saturday afternoon. Some of the stolen items Klostermeyer did not realize were missing until they were recovered from defendant\u2019s bags. Police Officer Keith Ward testified that Klostermeyer said he and defendant were the only two people who had access to the apartment during the relevant time.\nKlostermeyer further testified that he did not change his apartment locks until Sunday morning. Thus, defendant had a key and access to Klostermeyer\u2019s apartment from Tuesday until the following Sunday morning. Klostermeyer testified he was away from his apartment on Saturday afternoon, having gone to speak with the police. Klostermeyer\u2019s possessions were recovered from defendant\u2019s bags in Klostermeyer\u2019s apartment on Monday when the police brought defendant back to the apartment.\nWe reject defendant\u2019s argument that he did not have the capability to control the property, and therefore did not have constructive possession, because he did not have a working key to the apartment at the very moment the goods were discovered. This analysis ignores the totality of the circumstances in that for several days, during which time Klostermeyer\u2019s possessions disappeared, defendant had the power and capability to maintain control over the stolen goods. The fact that defendant was thwarted in returning to actually make off with the goods does not affect the completion of the larceny and the evidence that defendant had (1) the intent to control the goods, given that the property was among his possessions in closed bags in the room where he had been staying, and (2) the capability to control the property, given that during the time the items disappeared, defendant and Klostermeyer were the only two people with access to the apartment, and Klostermeyer testified that he did not place any of his property in the bags, nor did he ever open defendant\u2019s bags.\nThe fact that defendant\u2019s capability to maintain control over the goods eventually ended just prior to their discovery does not affect the evidence of defendant\u2019s constructive possession of the stolen property, particularly where there was no evidence that anyone but the victim had access to the apartment and the stolen goods between the time the locks were changed on Sunday and when the goods were discovered on Monday. See State v. Lilly, 25 N.C. App. 453, 455, 213 S.E.2d 418, 419 (1975) (constructive possession satisfied where the stolen property is \u201c \u2018... \u201cin any place where it is manifest it must have been put by the act of the [defendant]\u201d \u2019 \u201d (citations omitted)). The trial court did not err in instructing the jury as to the doctrine of recent possession based upon evidence of defendant\u2019s constructive possession of the property. See Butler, 147 N.C. App. at 11, 556 S.E.2d at 311 (whether totality of circumstances amounts to evidence of constructive possession is jury question).\nThe dissent argues that it was improper to use the theory of constructive possession because the evidence failed to show that he had exclusive control over the stolen goods. However, as our Supreme Court has noted, \u201c[w]hat amounts to exclusive possession of stolen goods to support an inference of a felonious.taking most often turns on the circumstances of the possession.\u201d State v. Maines, 301 N.C. 669, 675, 273 S.E.2d 289, 294 (1981). The Court noted that \u201c[t]he \u2018exclusive\u2019 possession required to support an inference or presumption of guilt need not be a sole possession but may be joint.\u201d Id. (citation omitted). The Court further explained that for the inference of guilt based on recent possession to arise where someone other than the defendant has access to the stolen goods, \u201cthe evidence must show the person accused of the theft had complete dominion, which might be shared with others [such as with co-conspirators], over the property or other evidence which sufficiently connects the accused person to the crime.\" Id. (emphasis added). \u201cStated differently, for the inference to arise, the possession in defendant must be to the exclusion of all persons not party to the crime.\u201d Id. Thus, where the defendant in Maines was apprehended in a car containing the stolen goods along with three other people, and the State had failed to show any criminal conspiracy between the four, the State failed to show that defendant had the necessary personal control over the stolen goods. Id. at 675-76, 273 S.E.2d at 294.\nHowever, in this case, the evidence, taken in the light most favorable to the State, shows that defendant\u2019s possession of the stolen goods was to the exclusion of all persons not a party to the crime. The only other person with access to the apartment was Klostermeyer, who testified that he never touched defendant\u2019s bags, never opened defendant\u2019s bags, and never placed any of his possessions in defendant\u2019s bags. Such evidence, giving the State the benefit of all reasonable inferences, is sufficient evidence to connect defendant to the crime and to establish that he had complete dominion over the stolen goods in his bags. The evidence clearly establishes that no one other than defendant exercised any control over, or possession of, his bags which contained the stolen goods.\nDefendant further argues the trial court erred in giving its instruction on constructive possession because it stated that a person could have constructive possession where, although the property is not on his person, he is aware of its presence \u201cand has either by himself or together with others both the power and intent to control it\u2019s [sic] disposition or use.\u201d Defendant argues the language \u201cor together with others\u201d should not have been included because there was no evidence showing defendant had a co-conspirator. Defendant failed to object to this instruction following the trial court\u2019s charge or when the court specifically asked for any objections or requests.\nDefendant has failed to carry his burden of establishing plain error, that being error \u201c \u2018so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u2019 \u201d State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citation omitted), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). Even if the trial court\u2019s instruction \u201cor together with others\u201d was not supported by any evidence of a co-conspirator, defendant has failed to show that, absent this error, the jury would not have convicted him of larceny. These arguments are overruled.\nII.\nBy his second argument, defendant contends the trial court erred in instructing the jury on the theory of constructive possession where it was unsupported by the evidence. Although defendant objected to the trial court\u2019s instructing the jury as to recent possession, he failed to specially object to the instruction on constructive possession. In any event, for the reasons discussed above, the evidence was sufficient to warrant the instruction on constructive possession, and any error in the trial court\u2019s use of the \u201cor together with others\u201d language does not rise to the level of plain error.\nIII.\nDefendant next argues the trial court erred in denying his motion to dismiss the larceny charge because the State failed to present substantial evidence of each element of the charge. \u201c. . . \u2018A motion to dismiss must be denied where substantial evidence exists of each essential element of the crime charged and of the defendant\u2019s identity as the perpetrator. \u201cSubstantial evidence\u201d is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d \u2019 \u201d State v. Isenberg, 148 N.C. App. 29, 41, 557 S.E.2d 568, 576 (2001) (citations omitted). In reviewing the trial court\u2019s denial of defendant\u2019s motion, we must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference to be drawn from the evidence. Matias, 354 N.C. at 551, 556 S.E.2d at 270.\nIn this case, the State presented substantial evidence of each essential element of felonious larceny. \u201cThe essential elements of larceny are that the defendant: 1) took the property of another; 2) carried it away; 3) without the owner\u2019s consent; and 4) with the intent to deprive the owner of the property permanently.\u201d Pickard, 143 N.C. App. at 490-91, 547 S.E.2d at 106. First, the State presented sufficient evidence that defendant took the property of another. The evidence established that Klostermeyer and defendant were the only two people with access to Klostermeyer\u2019s apartment during the relevant period. Klostermeyer\u2019s missing property was discovered in defendant\u2019s bags, among his possessions, and in the room where defendant had recently been staying. Moreover, Klostermeyer testified that he never opened defendant\u2019s bags and did not place his belongings in defendant\u2019s bags.\nSecond, the State presented sufficient evidence that there was a carrying away of Klostermeyer\u2019s property, however slight. As our Supreme Court noted in State v. Barnes, 345 N.C. 146, 478 S.E.2d 188 (1996), . . \u2018the element of taking is complete in the sense of being satisfied at the moment a thief first exercises dominion over the property.\u201d Id. at 149, 478 S.E.2d at 191 (holding act of larceny complete as soon as defendant removed bag of money from below cash register). \u201c \u2018A bare removal from the place in which [the defendant] found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away.\u2019 \u201d State v. Carswell, 296 N.C. 101, 103, 249 S.E.2d 427, 428 (1978) (citation omitted). The evidence that Klostermeyer\u2019s property was discovered mixed in with defendant\u2019s possessions in his bags constitutes substantial evidence of the necessary asportation.\nThe State also presented substantial evidence of the third and fourth elements of larceny. The evidence shows Klostermeyer did not consent to defendant\u2019s taking the items and placing them in his own bags. Moreover, the fact that the items were discovered in defendant\u2019s bags and among his own possessions is sufficient evidence from which a reasonable jury could conclude defendant had the necessary intent to permanently deprive Klostermeyer of this property.\nIn addition, the State\u2019s evidence met the requirement for felonious larceny of establishing that defendant took property valued at $1,000.00 or more. See N.C. Gen. Stat. \u00a7 14-72(a) (1999) (larceny is felonious where value of stolen goods is at least $1,000.00). We disagree with defendant\u2019s contention that there was no evidence defendant took property valued at $1,000.00 at any single time. Klostermeyer testified that one of the missing items was a set of three coins. Klostermeyer stated that in his opinion, the fair market value of the coins was $800.00 to $1,000.00 a piece, for a total fair market value of $2,400.00 to $3,000.00. We conclude, viewing the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference, that it is reasonable to infer that the coins were taken at one time. This amount is sufficient to meet the value requirement for felonious larceny.\nMoreover, Klostermeyer\u2019s testimony as to the fair market value of the coin set is sufficient proof of the value amount for felonious larceny. See State v. Revelle, 301 N.C. 153, 160, 270 S.E.2d 476, 480 (1980) (victim\u2019s opinion testimony as to fair market value of stolen goods sufficient evidence upon which to submit charge of felonious larceny to jury), overruled on other grounds, State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988); see also State v. Jacobs, 105 N.C. App. 83, 87, 411 S.E.2d 630, 632 (1992); State v. Haire, 96 N.C. App. 209, 214, 385 S.E.2d 178, 181 (1989), cert. denied, 326 N.C. 265, 389 S.E.2d 117 (1990); State v. Simpson, 14 N.C. App. 456, 459, 188 S.E.2d 535, 536 (1972).\nThe State presented substantial evidence as to all elements of larceny, as well as the value amount required for felonious larceny. The trial court did not err in denying defendant\u2019s motion to dismiss the charge. This assignment of error is overruled.\nIV.\nBy his fourth argument, defendant maintains the trial court erred in denying his motion to quash the indictment for its failure to set forth each element of larceny as required by N.C. Gen. Stat. \u00a7 15A-924(a)(5) (1999). The indictment alleged in pertinent part that defendant \u201cunlawfully, willfully and feloniously did [s]teal, take, and carry away (see attached list), the personal property of Thomas Richard Klostermeyer, such property having a value of $3,700.00. This is in violation of N.C.G.S. 14-72(a).\u201d Defendant argues that the indictment was insufficient in that it failed to specifically allege that defendant did not have consent to take the property, nor that defendant had the intent to permanently deprive Klostermeyer of his property.\nHowever, the issue of the sufficiency of the language used to charge larceny by the indictment in this case has previously been determined by our Courts. In State v. Mandina, 91 N.C. App. 686, 373 S.E.2d 155 (1988), this Court, citing to N.C. Gen. Stat. \u00a7 15A-924(a)(5), held the following language in the indictment sufficient to charge larceny: that the defendant . . \u2018unlawfully and wilfully did feloniously steal, take and carry away . . . the personal property of (name of owner-victim) pursuant to a violation of Section 14-51 of the General Statutes of North Carolina. This larceny was in violation of the following law: N.C.G.S. 1472(b)(2).\u2019 \u201d Id. at 690, 373 S.E.2d at 158; see also State v. White, 85 N.C. App. 81, 89, 354 S.E.2d 324, 330 (1987) (indictment sufficient to charge larceny where it contained language that the defendant \u201c \u2018did unlawfully, wilfully, and feloniously steal, take, and carry away another\u2019s personal property\u2019 \u201d), affirmed, 322 N.C. 506, 369 S.E.2d 813 (1988).\nThus, the specific language used in the indictment here has previously been held to be sufficient to charge the offense of larceny. Moreover, we find the indictment sufficient to meet the underlying purpose of an indictment, which is \u201cto ensure that a defendant may adequately prepare his defense and be able to plead double jeopardy if he is again tried for the same offense.\u201d State v. Madry, 140 N.C. App. 600, 601, 537 S.E.2d 827, 828 (2000).\nAlthough defendant also raises constitutional arguments, contending that the indictment violates his Sixth and Fourteenth Amendment rights, he failed to present these arguments to the trial court. We decline to address these arguments for the first time on appeal. See State v. Deese, 136 N.C. App. 413, 420, 524 S.E.2d 381, 386 (appellate court will not consider constitutional arguments neither asserted nor determined in the trial court), appeal dismissed and disc. review denied, 351 N.C. 476, 543 S.E.2d 499 (2000). Defendant\u2019s assignment of error in overruled.\nV.\nIn his final argument, defendant maintains the trial court erred in denying his motion to dismiss the larceny charge due to a fatal variance between the date of the offense alleged on the indictment, and the proof which was offered at trial. The indictment alleged that the offense occurred \u201con or about May 3, 1999\u201d, which was the Monday on which the stolen property was discovered in defendant\u2019s bags. Defendant argues the evidence did not show that he committed the larceny on 3 May 1999.\n\u201cAn indictment must include a designated date or period of time within which the alleged offense occurred.\u201d State v. Stewart, 353 N.C. 516, 517, 546 S.E.2d 568, 569 (2001). Our Supreme Court has recognized that the time listed in an indictment is not generally an essential element of the crime charged, and thus, \u201ca judgment should not be reversed when the indictment lists an incorrect date or time \u2018 \u201cif time was not of the essence\u201d \u2019 of the offense, and \u2018 \u201cthe error or omission did not mislead the defendant to his prejudice.\u201d \u2019 \u201d Id. at 517, 546 S.E.2d at 569 (citations omitted). The Supreme Court has determined that a variance as to time is \u201c. . . \u2018material and of the essence\u2019 . . where it \u201c. . . \u2018deprives a defendant of an opportunity to adequately present his defense.\u2019 \u201d Id. at 518, 546 S.E.2d at 569 (citation omitted). Moreover, we require \u201cthat a defendant demonstrate that he or she was misled by a variance, or hampered in his/her defense before this Court will consider the variance error.\u201d State v. Weaver, 123 N.C. App. 276, 291, 473 S.E.2d 362, 371, disc. review denied and cert. denied, 344 N.C. 636, 477 S.E.2d 53 (1996).\nApplying these principles here, we hold that any variance in the date alleged on the indictment and the evidence offered at trial does not require reversal of defendant\u2019s conviction, as he has failed to demonstrate how any variance deprived him of an opportunity to present his defense. Defendant argues the variance was prejudicial in that he relied on \u201can alibi defense\u201d which established that on 3 May 1999 he was \u201cout riding his bicycle looking for loose change.\u201d However, a review of the evidence reveals defendant did not rely on an alibi defense at trial; rather, defendant asserted throughout trial that the items were placed in his bags by Klostermeyer in an effort to frame him. Defendant never requested that the trial court instruct the jury as to alibi. Therefore, any variance in dates did not hamper the presentation of defendant\u2019s defense.\nDefendant has failed to establish the presence of prejudicial error.\nNo error.\nJudge TYSON concurs.\nJudge GREENE dissents in a separate opinion.\n. Although the dissent states that the principles of constructive possession are not available to support the recent possession doctrine, this Court has held otherwise. See State v. Carter, 122 N.C. App. 332, 339, 470 S.E.2d 74, 79 (1996) (trial court did not err in instructing on doctrine of recent possession and constructive possession); State v. Hardy, 67 N.C. App. 122, 127, 312 S.E.2d 699, 703 (1984) (evidence was sufficient to support submission of doctrine of recent possession based upon circumstantial evidence of defendant\u2019s constructive possession of stolen property).", "type": "majority", "author": "HUNTER', Judge." }, { "text": "GREENE, Judge,\ndissenting.\nI believe the State failed to present substantial evidence of defendant\u2019s recent possession of the stolen goods at issue, and thus, the trial court erred in submitting the felonious larceny charge to the jury. I therefore dissent.\nIn order to invoke the doctrine of recent possession and survive a motion to dismiss a larceny charge, the State must present substantial evidence that:\n(1) the property described in the indictment was stolen; (2) the stolen goods were found in [the] defendant\u2019s custody and subject to his control and disposition to the exclusion of others though not necessarily found in [the] defendant\u2019s hands or on his person so long as he had the power and intent to control the goods; and (3) the possession was [discovered] recently after the larcenyf.]\nState v. Maines, 301 N.C. 669, 674, 273 S.E.2d 289, 293 (1981) (citations omitted). Although it is not necessary the stolen property be found either in the hands or on the person of the defendant, the property must be under the defendant\u2019s \u201cexclusive personal control.\u201d State v. Foster, 268 N.C. 480, 487, 151 S.E.2d 62, 67 (1966); State v. Lewis, 281 N.C. 564, 567, 189 S.E.2d 216, 219, cert. denied, 409 U.S. 1046, 34 L. Ed. 2d 498 (1972). It is not enough that recently stolen items are found in a container belonging to the defendant without some indication the defendant was either in possession of the container or exercised exclusive control over the container at the time the stolen items were found in the container. State v. English, 214 N.C. 564, 566, 199 S.E. 920, 921 (1938) (recent possession did not apply when there was no evidence the defendant was in possession of his truck at the time the stolen items were found or at the time the items were placed there); see State v. McFalls, 221 N.C. 22, 23-24, 18 S.E.2d 700, 701-02 (1942) (trial court erred in instructing the jury on recent possession where the goods were found in the defendant\u2019s cedar chest in an apartment she shared with two other individuals and there was no evidence the defendant placed the goods there or knew of them). Thus, the principles of constructive possession (where possession can be inferred even though it is nonexclusive) are not available to support the recent possession doctrine. 52A C.J.S. Larceny \u00a7 107, at 595 (1968).\nIn this case, it is not disputed the property was stolen and its possession discovered recently after the larceny. The question is whether there is substantial evidence the property was found in defendant\u2019s \u201ccustody and subject to his control and disposition to the exclusion of others.\u201d In this case, in viewing the evidence in the light most favorable to the State, the stolen items were not found on defendant\u2019s person but were found in garbage bags containing defendant\u2019s personal items. Those bags were located in an apartment, leased by Klostermeyer, in which Defendant had stayed for several days prior to 30 April 1999. At no time during defendant\u2019s stay with Klostermeyer did he have exclusive access or control over the apartment. Indeed, after 1 May 1999, defendant had no access to the apartment as the locks were changed on the door on 2 May 1999. Moreover, the State presented no evidence whatsoever that defendant was present in the apartment after 30 April or that the garbage bags were removed from the apartment during the period between 30 April and 3 May 1999, the latter date being the date on which the property was found. In addition, the arresting police officer testified at trial that to the best of his knowledge, defendant had not been in the apartment after 30 April 1999 until taken there on 3 May 1999. Thus, there is no evidence giving rise to the presumption defendant stole the property in question. Accordingly, I would reverse the trial court\u2019s denial of defendant\u2019s motion to dismiss and reverse the conviction.\n. The State does not argue in its brief to this Court that evidence exists defendant took the property at issue, except under the recent possession doctrine.\n. The fact that the possession of the apartment (in which the bags containing the stolen goods were found) was shared with the victim of the larceny in this case is not material; the possession remained nonexclusive.\n. I note \u201cexclusive possession may be joint possession if persons are shown to have acted in concert\u201d or as an accomplice. State v. Solomon, 24 N.C. App. 527, 529, 211 S.E.2d 478, 480 (1975). In this case, however, there is no evidence of an accomplice.", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General T. Lane Mallonee, for the State.", "Marjorie S. Canaday, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TOMMY LEE OSBORNE\nNo. COA01-271\n(Filed 19 March 2002)\n1. Larceny\u2014 felonious \u2014 jury instruction \u2014 doctrine of recent possession\nThe trial court did not err in a felonious larceny case by instructing the jury on the doctrine of recent possession, because: (1) the evidence on the element of possession, viewed in the totality of the circumstances, was sufficient to warrant the trial court\u2019s instruction; (2) defendant and the owner of the apartment where the items were taken were the only two people who had access to the apartment during the relevant times, the owner did not change his apartment locks during the relevant times and only did so after his property was missing, defendant had a key and access to the apartment during the times the items were taken, and the possessions were recovered from defendant\u2019s bags in the apartment; (3) the fact that defendant was thwarted in returning to actually make off with the goods does not affect the completion of the larceny, and the evidence revealed that defendant had the intent to control the goods and the capability to control the property; and (4) the evidence taken in the light most favorable to the State reveals that defendant\u2019s possession of the stolen goods was to the exclusion of all persons not a party to the crime.\n2. Larceny\u2014 felonious \u2014 -jury instruction \u2014 constructive possession\nEven though there was no evidence that defendant had a coconspirator, the trial court did not commit plain error in a felonious larceny case by its instruction to the jury on constructive possession that a person could have constructive possession where, although the property is not on his person, he is aware of its presence and has either by himself \u201cor together with others\u201d both the power and intent to control its disposition or use.\n3. Larceny\u2014 felonious \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of felonious larceny under N.C.G.S. \u00a714-72(a), because: (1) the evidence established that the owner of the property and defendant were the only two people with access to the owner\u2019s apartment during the relevant period; (2) the owner\u2019s missing property was discovered in defendant\u2019s bags, among Ms possessions, and in the room where defendant had recently been staying; (3) the owner testified that he never opened defendant\u2019s bags and did not place his belongings in defendant\u2019s bags; (4) the evidence that the owner\u2019s property was discovered mixed in with defendant\u2019s possessions in his bags constitutes substantial evidence of the necessary asportation and the necessary intent to permanently deprive the owner of this property; (5) the evidence shows the owner did not consent to defendant\u2019s taking the items and placing them in defendant\u2019s own bags.; and (6) there was sufficient evidence that defendant took property valued at $1,000 or more.\n4. Larceny\u2014 felonious \u2014 sufficiency of indictment\nAn indictment was sufficient to charge felonious larceny where it alleged that defendant \u201cunlawfully, willfully and felo-mously did steal, take, and carry away (see attached list), the personal property of [a named person], such property having a value of $3,700.00. TMs is in violation of N.C.G.S. 14-72(a).\u201d It was not necessary for the indictment to allege specifically that defendant did not have consent to take the property or that defendant had the intent to permanently deprive the owner of his property.\n5. Larceny\u2014 motion to dismiss \u2014 variance between dates\nThe trial court did not err by denying defendant\u2019s motion to dismiss a felonious larceny charge based on an alleged fatal variance between the date alleged in the indictment and the evidence presented at trial, because: (1) defendant has failed to demonstrate how any variance deprived him of an opportunity to present his defense; and (2) although defendant argues the variance was prejudicial in that he relied on an alibi defense, a review of the evidence reveals that defendant did not rely on an alibi defense at trial.\nJudge Greene dissenting.\nAppeal by defendant from judgment entered 18 August 2000 by Judge James U. Downs in Watauga County Superior Court. Heard in the Court of Appeals 22 January 2002.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General T. Lane Mallonee, for the State.\nMarjorie S. Canaday, for defendant-appellant." }, "file_name": "0235-01", "first_page_order": 269, "last_page_order": 282 }