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    "parties": [
      "STATE OF NORTH CAROLINA v. ALLEN EDWARD WASHINGTON"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nDefendant was found guilty of felonious breaking or entering, felonious larceny and felonious possession of stolen goods. The trial judge arrested the conviction for felonious possession of stolen goods and sentenced defendant to 20 years in prison. Defendant appeals, assigning error to the denial of his motions to suppress evidence and dismiss certain charges and to the trial court\u2019s sentencing procedure.\nAt a suppression hearing conducted by Judge Watts, defendant argued for suppression of certain evidence obtained without a warrant from defendant\u2019s residence. Judge Watts found that defendant, his wife and child resided with Mrs. Washington, defendant\u2019s mother, and lived in one bedroom of the house she leased. Defendant did not contribute to the support or maintenance of the house: his mother paid all rent, utilities and other household expenses. Although defendant had actually purchased the car, Mrs. Washington also paid the insurance for and was the registered owner of a 1971 Ford automobile parked in the front yard of the residence. Mrs. Washington never drove the car but had a set of keys to it. Acting on an informer\u2019s tip concerning a break-in at the W. A. Gaskins, Inc. garage, sheriffs deputies arrived at Mrs. Washington\u2019s home with a warrant for defendant\u2019s arrest, but no search warrant. When the officers announced their intention to arrest defendant, Mrs. Washington told them where her son\u2019s bedroom was located. Defendant was escorted from the house to a police car in the front yard where he remained throughout the incident. Believing Mrs. Washington to be in control of the premises, the deputies requested her permission to search the premises. At some point, Mrs. Washington executed a consent-to-search form.\nJudge Watts found defendant\u2019s mother was in charge of the premises and that she freely, voluntarily and knowingly consented to the search of certain outbuildings next to her house. The court also found Mrs. Washington consented to the search of the 1971 Ford automobile. Although the court found that certain coercive police statements vitiated Mrs. Washington\u2019s consent to later portions of the search, the court nevertheless found Mrs. Washington\u2019s express consent to search the outbuildings and Ford automobile was given prior to such statements. Furthermore, the court found defendant was a guest-invitee at his mother\u2019s residence and therefore lacked standing to contest the search of the outbuildings since the court found he had no reasonable expectation of privacy in such structures. Similarly, the court ruled defendant lacked standing to raise the issue of his mother\u2019s allegedly coerced consent. Finally, while the court found defendant had standing to contest the search of the 1971 Ford automobile, it also found that, pursuant to N.C.G.S. Sec. 15A-222(2) (1983), defendant\u2019s mother had authority as registered owner to permit the search of the car. At no time did defendant himself ever protest these searches. For these reasons, Judge Watts denied defendant\u2019s motion to suppress except as to a cooler taken from defendant\u2019s house after the allegedly coercive statements. The court ordered that all other items seized as a result of the search be admitted at trial against defendant.\nAt trial, the State introduced the items seized from the outbuildings and automobile. Several of the tools and items recovered were painted red and yellow and etched with the initial \u201cG.\u201d The State also offered testimony which tended to show the tire treads on defendant\u2019s automobile appeared to be the same as certain tire impressions taken at the scene of the crime. Defendant testified he had never been to the Gaskins property, did not break into the garage and was at his mother-in-law\u2019s house at the time of the break-in. At the close of all the evidence, the trial court denied defendant\u2019s motion to dismiss the felonious breaking or entering charge.\nThe issues for this Court\u2019s determination are: (1) whether defendant had standing to question his mother\u2019s alleged consent to search of the outbuildings by virtue of (a) his interest in the cur-tilage; or (b) his allegedly exclusive control of the outbuildings; (2) irrespective of defendant\u2019s standing, whether defendant\u2019s mother\u2019s consent to search of the outbuildings was valid despite defendant\u2019s arguments that (a) he exclusively controlled the outbuildings; (b) his joint consent to the searches was necessary since he was present; (c) his mother\u2019s consent to the search of the outbuildings was coerced; (3) whether the mother\u2019s consent authorized a warrantless search of the automobile, purchased and generally driven by defendant, but registered in her name; (4) whether the trial court properly denied defendant\u2019s motion to dismiss the breaking or entering charge; and (5), in sentencing defendant, whether the trial court properly evaluated the aggravating and mitigating factors pertaining to defendant\u2019s separate convictions.\nI\nDefendant first argues that the evidence at the suppression hearing did not support the court\u2019s findings and therefore defendant\u2019s motion to suppress should have been allowed. If the trial court\u2019s findings of fact are supported by competent evidence, the evidence seized during the search was properly admitted. State v. Thompson, 287 N.C. 303, 317, 214 S.E. 2d 742, 751 (1975), death penalty vacated, 428 U.S. 908 (1976). Those findings, so supported, are binding on this Court even though there is evidence to the contrary. State v. Davis, 290 N.C. 511, 541, 227 S.E. 2d 97, 115-16 (1976). In determining whether the trial court\u2019s findings are supported by the evidence, we look to the entire record, not merely to the evidence presented on voir dire. State v. Moore, 316 N.C. 328, 333, 341 S.E. 2d 733, 737 (1986) (determining validity of consent searches).\nJudge Watts found that Mrs. Washington was \u201cin charge of the premises\u201d and that defendant was a \u201cguest invitee\u201d of his mother. The court therefore concluded Mrs. Washington alone had the authority to consent to the search of \u201cher premises, including the curtilage thereof, tending to be a tobacco bam and a packhouse, and a hog pen . . . situate on her leased premises.\u201d (Emphasis added.) The court further concluded defendant had no standing to object to the search of these outbuildings, regardless of his mother\u2019s consent, since defendant had no reasonable expectation of privacy in such buildings and structures.\nA\nWe disagree with the court\u2019s apparent conclusion that defendant had no reasonable expectation of privacy in the outbuildings even if they were situated in the curtilage of the house in which he resided with his mother; however, as we find these outbuildings were not within the curtilage proper, defendant nevertheless lacked standing on that basis to challenge the search of these outbuildings.\nFirst, as to the house itself, an individual can show the requisite privacy interest in residential premises by showing either that he owned or leased the premises or that he had an unrestricted right of occupancy, custody or control over them. Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978). Though the lease to the house and premises was in Mrs. Washington\u2019s name, \u201cit is clear that \u2018capacity to claim the protection of the [Fourth] Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion ....\u2019\u201d State v. Boone, 293 N.C. 702, 708, 239 S.E. 2d 459, 463 (1977) (quoting Mancusi v. De Forte, 392 U.S. 364, 368 (1968)).\nWhile defendant concededly neither owned nor leased his mother\u2019s house, he certainly had a right of occupancy therein. Defendant, his wife and child had resided in the leased house since November 1984, some four months prior to the searches. Mrs. Washington testified defendant and his family had originally resided alone in the house while Mrs. Washington cared for her own ill mother. There was no evidence that defendant\u2019s use of the house or surrounding premises was ever restricted by his mother. Defendant\u2019s possessory interest therefore conferred standing to challenge the search of his mother\u2019s house where he regularly resided. See Bumper v. North Carolina, 391 U.S. 543, 548 n.11 (1968) (no question of defendant\u2019s standing to challenge search of grandmother\u2019s house where he regularly resided); Rakas, 439 U.S. at 136 (defendant in Bumper had standing because of \u201csubstantial possessory interest\u201d in house searched); cf. State v. Jones, 299 N.C. 298, 306, 261 S.E. 2d 860, 865 (1980) (citing Rakas, court held defendant failed his burden of proving standing where he did not actually assert possessory interest or other expectation of privacy in parents\u2019 garage).\nAs defendant therefore had a protected expectation of privacy in the house, that protection extended to the curtilage of the house as well: the Fourth Amendment \u201cspeaks of the \u2018houses\u2019 of persons, which word has been enlarged by the courts to include the \u2018curtilage\u2019 or ground and buildings immediately surrounding a dwelling . . . .\u201d Boone, 293 N.C. at 709, 239 S.E. 2d at 463 (quoting Rosencranz v. United States, 356 F. 2d 310, 313 (1st Cir. 1966)). In Oliver v. United States, 466 U.S. 170, 180 (1984), the United States Supreme Court identified the central component of the inquiry as whether the alleged curtilage harbors \u201cthe area to which extends the intimate activity associated with the \u2018sanctity of a man\u2019s home and the privacies of life.\u2019 \u201d (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). The Court has more recently stated the question of curtilage should be resolved with particular reference to four factors: (1) the proximity of the area claimed as curtilage to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by people passing by. United States v. Dunn, 480 U.S. \u2014, 94 L.Ed. 2d 326, 334-35 (1987); cf. State v. Fields, 315 N.C. 191, 194-96, 337 S.E. 2d 518, 521 (1985) (defendant burglarizes curtilage building only if function of building and proximity to home evidence use for comfort and convenience of dweller). We recognize the Fields analysis of a burglar\u2019s alleged intrusion onto \u201ccurtilage\u201d may technically be distinguished from our analysis of an officer\u2019s alleged intrusion onto constitutionally protected \u201ccurtilage\u201d; however, we note that, like our Supreme Court, in Fields, the Dunn Court rejected the notion that any particular outbuilding, such as a barn, is by definition part of the curtilage. Cf. Dunn, 480 U.S. at \u2014, 94 L.Ed. 2d at 339 (Brennan, J., dissenting) (collecting earlier state cases holding barns and outbuildings were within curtilage, including State v. Frizzelle, 243 N.C. 49, 51, 89 S.E. 2d 725, 726 (1955)).\nIn the instant case, the tobacco barn, packhouse, and hog shelter were 50 to 75 feet from defendant\u2019s residence. Cf. Dunn, 480 U.S. at \u2014, 94 L.Ed. 2d at 335 (where no exclusionary fence surrounded barn and residence, fact barn was 60 yards from house did not support inference that barn was part of curtilage); United States v. Van Dyke, 643 F. 2d 992, 994 (4th Cir. 1981) (where exclusionary fence surrounded residence, curtilage extended 150 feet from house to fence); but see Fields, 315 N.C. at 196 n.2, 337 S.E. 2d at 521 n.2 (shed\u2019s distance of 45 feet from home was not close enough to show structure was indispensable to comfort and convenience of dwelling). The outbuildings were put to little or sporadic domestic use: Mrs. Washington testified she kept a few hogs in the hog pen, nothing in the barn, and an old mattress, some car parts and a car battery in the packhouse. Cf. Fields, 315 N.C. at 196 n.2, 337 S.E. 2d at 521 n.2 (freezer and nonperishable food items in shed not sufficient to show function of comfort and convenience). Mrs. Washington further testified that neither the barn nor the packhouse was locked; nor was there any evidence those structures were in any way fenced with the house.\nThe proximity of the outbuildings to defendant\u2019s house is some evidence these structures should be treated as adjuncts of the house; however, proximity is only one factor demonstrating curtilage under Dunn and Fields. The instant case demonstrates none of the other curtilage factors cited in those decisions. While such factors do not mechanically delineate the extent of curtilage, they do bear on the \u201cprimary focus . . . whether the area in question harbors the intimate activities associated with domestic life and the privacies of the home.\u201d Dunn, 480 U.S. at \u2014, 94 L.Ed. 2d at 335 n.4. In light of the factors enumerated in Dunn and Fields, we must conclude the outbuildings searched in this case were not so intimately associated with \u201cdomestic life and the privacies of home\u201d as to be within the curtilage of defendant\u2019s residence. On this basis, defendant has failed to carry his burden of proving any reasonable expectation of privacy in the buildings searched. See Jones, 299 N.C. at 306, 261 S.E. 2d at 865 (defendant has burden to prove standing).\nB\nDefendant also asserts a privacy basis in the tobacco barn and packhouse independent of the curtilage: defendant argues he acquired \u201cexclusive control\u201d of these structures since his mother testified she never went into them. Since defendant\u2019s mother had stored some items in the packhouse, we note defendant\u2019s alleged control over that structure could not have been absolutely exclusive. In any event, the exclusiveness of defendant\u2019s alleged control vis a vis his mother is only relevant to the issue of her consent to any search, not to defendant\u2019s standing. See 1 W. LaFave and J. Israel, Criminal Procedure Sec. 3.10(e) at 356 (1984) (joint tenant may not consent to search of place under exclusive control of other occupant).\nHowever, defendant\u2019s alleged \u201cexclusive control\u201d of the outbuildings is relevant to his standing insofar as it may signify his right to control the outbuildings to the exclusion of all persons but his mother. As this Court stated in State v. Casey, 59 N.C. App. 99, 113, 296 S.E. 2d 473, 482 (1982), \u201cone who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude.\u201d (quoting Rakas, 439 U.S. at 143 n.12). The expectation of privacy afforded by such right to exclude is not defeated by the fact defendant shares control with and could not lawfully exclude a co-occupant of the premises. See Rakas, 439 U.S. at 149 (explaining Jones v. United States, 362 U.S. 257 (1960) on basis defendant had such dominion and control that could exclude all but person who gave defendant permission to use apartment and apartment key).\nHowever, we find defendant did not here have any ownership or possessory interests such that he had the right to exclude persons other than his mother from the outbuildings. While we above found defendant had a possessory interest in Mrs. Washington\u2019s home and curtilage by virtue of his residence there, we see nothing in the record supporting defendant\u2019s possessory rights in these outbuildings. Mrs. Washington testified without contradiction that defendant never used any of the outbuildings, nor were any of these structures locked or secured. Without constructive possession by virtue of some legal title, defendant failed to exercise that actual possession essential to excluding trespassers from the outbuildings: \u201cactual possession of land consists in exercising acts of dominion over it, and in making the ordinary use of it to which it is adapted . . . State v. Baker, 231 N.C. 136, 139, 56 S.E. 2d 424, 426-27 (1949). See also N.C.G.S. Secs. 14-126, 14-134 (1986) (in absence of title, actual possession needed to prosecute trespass to land and fixtures).\nEven if we assume arguendo defendant\u2019s possessory right to exclude others from the outbuildings, the question remains whether defendant had a reasonable expectation of privacy. In United States v. Ramapuram, 632 F. 2d 1149 (4th Cir. 1980), cert. denied, 450 U.S. 1030 (1981), the car which defendant had used exclusively, but did not own, was stored in an open field on a farm owned by defendant\u2019s family. Defendant did not actually reside on the farm. Police found dynamite in the unsecured trunk of the junk car. Conceding defendant\u2019s ownership and possessory rights to exclude others, the Ramapuram Court nevertheless held \u201cneither interest was sufficient to raise defendant\u2019s actual expectation of privacy to a level of constitutional legitimacy.\u201d Id. at 1156.\nIn the instant case, the outbuildings were in the \u201copen fields\u201d outside the curtilage of the house. Governmental intrusion upon the \u201copen fields\u201d is not an unreasonable search proscribed by the Fourth Amendment. Dunn, 480 U.S. at \u2014, 94 L.Ed. 2d at 336. \u201c[T]he term \u2018open fields\u2019 may include any unoccupied or undeveloped area outside of the curtilage [and] . . . need be neither \u2018open\u2019 nor a \u2018field\u2019 as those terms are used in common speech.\u201d Oliver, 466 U.S. at 180 n.11. (Aside from the location of these outbuildings in the \u201copen field,\u201d we note a piece of vending machine metal work from the Gaskins garage was also found on the ground in the constitutionally unprotected \u201copen field\u201d fifteen feet from the tobacco barn.) Futhermore, defendant in no way attempted to lock or secure the outbuildings or otherwise take those \u201cprecautions customarily taken by those seeking privacy.\u201d Ramapuram, 632 F. 2d at 1156 (quoting Rakas, 439 U.S. at 152-53). The hog shelter was open to exposure and Mrs. Washington testified the packhouse had boards missing and was \u201copen.\u201d Even if we assume defendant\u2019s right to exclude others from the outbuildings, we find, as in Ramapuram, that defendant\u2019s \u201cpossessory interest in the [outbuildings] was sufficiently lessened to compel the judgment that he could not legitimately expect that the contents of the unlocked [structures] ... in an open field would remain secure from prying eyes, irrespective of whether those eyes were private or governmental.\u201d Id. In light of these considerations, we find defendant had no privacy interest in these outbuildings by virtue of his alleged exclusive control.\nII\nWhile we have concluded defendant lacked standing to challenge the search of the outbuildings, we also conclude that, regardless of defendant\u2019s standing, the search was sanctioned by Mrs. Washington\u2019s valid consent as co-occupant of the home. We note at the outset that the court found Mrs. Washington consented to the search of her \u201cpremises, including the curtilage thereof.\u201d Although the outbuildings were outside the curtilage, we nevertheless agree with the court that the scope of Mrs. Washington\u2019s consent to search included the outbuildings.\nA\nEven if we assume defendant\u2019s legitimate privacy interest in the outbuildings by virtue of his possession or control to the exclusion of third parties, we still reject defendant\u2019s argument that he had such \u201cexclusive\u201d control over the outbuildings that his co-occupant mother was not empowered to consent to their search. Since Mrs. Washington testified she never went into the pack-house or tobacco barn, defendant contends she had \u201crelinquished\u201d her control of those buildings to him. Rather than revealing defendant\u2019s acquisition of \u201cexclusive\u201d control over the outbuildings, the record instead discloses that defendant and his mother shared joint access to, if not control of, the outbuildings. Mrs. Washington\u2019s subjective assessment was that \u201cwe all had control.\u201d Such circumstances reveal common authority to consent. In U.S. v. Matlock, 415 U.S. 164 (1974), the U. S. Supreme Court observed that:\nCommon authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third party consent does not rest upon the law of property, with its attendant historical and legal refinements [citations omitted] but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the cohabitants has the right to per mit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.\nId. at 171 n.7 (emphasis added).\nThere are thus two bases of \u201ccommon authority\u201d supporting the right of persons having joint access or control to consent under Matlock: (1) that the consenting party could permit the search \u201cin his own right\u201d; and (2) that the defendant had \u201cassumed the risk\u201d that a co-occupant might permit a search. 1 W. LaFave & J. Israel, Criminal Procedure Sec. 3.10(d) at 350 (1984). Mrs. Washington never relinquished her right of access or control in the outbuildings. Defendant cannot demonstrate his exclusive control of the premises simply by evidence that his mother did not actually use part of the leased premises: her actual use is irrelevant where she retained sufficient control over the premises that defendant assumed the risk that she might at some time exercise her right to enter upon and inspect the premises and permit others to do so. United States v. Cook, 530 F. 2d 145, 149 (7th Cir. 1976), cert. denied, 426 U.S. 909 (1976); see also Frazier v. Cupp, 394 U.S. 731, 740 (1969) (although only gave actual permission to use part of bag, defendant assumed risk other would allow search of whole bag). Since Mrs. Washington retained common authority over the outbuildings under Matlock, defendant by definition lacked such exclusive control that he alone could consent to any search.\nThe instant case is clearly distinguishable from those circumstances where items of personal property are brought into joint living situations without a defendant waiving his Fourth Amendment expectations in such property. E.g., United States v. Gilley, 608 F. Supp. 1065, 1068 (D. Ga. 1985) (guests and co-residents may have privacy interests in articles such as travel bags which are not waived by a third-party consent search); see also United States v. Block, 590 F. 2d 535, 542 (4th Cir. 1978) (suitcases, footlockers and brief cases are objects of privacy; common authority does not automatically extend to interiors of every enclosed space capable of being searched within common area).\nB\nSince defendant shares common authority with his mother, defendant next argues that under Matlock his mother could consent to a search only in his absence. Defendant notes that the Matlock Court stated \u201cthe consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.\u201d 415 U.S. at 170 (emphasis added). In the instant case, defendant was either inside the house or inside a patrol car outside the house throughout the incident. Defendant argues his mother\u2019s authority to consent could not override his own since he was not \u201cabsent.\u201d\nHowever, the record reveals no instance where defendant either refused consent to the officers or communicated any refusal to his mother; thus, defendant, though present, was not \u201cnon-consenting\u201d under Matlock. Similarly, in State v. McNeill, 33 N.C. App. 317, 319, 235 S.E. 2d 274, 275 (1977), we upheld a lessee\u2019s consent to search despite the fact the co-habitant defendant was present, though apparently non-objecting, throughout the search. We specifically held the lessee was authorized to give consent to a search under N.C.G.S. Sec. 15A-222(3), which states, \u201cthe consent . . . must be given ... by a person who by ownership or otherwise is reasonably apparently entitled to give or withhold consent to a search of premises.\u201d Id. We have held Section 15A-222(3) is \u201cconsistent with the language in Matlock . . . that permission may be \u2018obtained from a third party who possessed common authority or other sufficient relationship to the premises or effects sought to be inspected.\u2019 \u201d State v. Kellam, 48 N.C. App. 391, 397, 269 S.E. 2d 197, 200 (1980) (quoting Matlock, 415 U.S. at 171) (emphasis in original).\nHowever, while we have held either occupant can consent to a search where two occupants have equal rights to the use or occupation of the premises, e.g., State v. Carter, 56 N.C. App. 435, 437, 289 S.E. 2d 46, 47, disc. rev. denied, 305 N.C. 761, 292 S.E. 2d 576 (1982), we have not yet addressed the precise issue of which occupant\u2019s consent controls if both occupants are present and one refuses consent. Since defendant did not object at the time of the search, the issue has not been properly raised under these facts; however, even if defendant had objected to the search, we question whether defendant\u2019s presence and objection would vitiate his mother\u2019s consent even under Matlock. His mother certainly retained \u201cjoint access and control\u201d sufficient to enable her to consent \u201cin her own right\u201d to a search of the premises. Since Mrs. Washington could consent to the searches in her own right under Matlock, we question how defendant\u2019s refusal could have invalidated her consent that did not depend on his authority in the first place. Furthermore, it can be argued defendant likewise assumed the risk under Matlock that his mother might not comply with his wishes. See generally, 1 W. LaFave & J. Israel, Criminal Procedure Sec. 3.10(d) at 350 (1984). For these reasons, we conclude there was no error in the court\u2019s conclusion that Mrs. Washington had sufficient authority to authorize a warrantless search of the outbuildings on her leased premises.\nC\nDefendant asserts his mother\u2019s consent to search was invalid for the additional reason that it was the result of coercive statements by a sheriffs deputy. As our Supreme Court stated in State v. Brown, 306 N.C. 151, 170, 293 S.E. 2d 569, 582, cert. denied, 459 U.S. 1080 (1982):\nWhen the validity of a consent to search is challenged, the trial court must conduct a voir dire to determine whether the consent was in fact given voluntarily and without compulsion [citation omitted]. \u201c[T]he question whether a consent to a search was in fact \u2018voluntary\u2019 or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances.\u201d Schneckloth v. Bustamonte, 412 U.S. 218, 227 [1973] [citations omitted].\nThere was competent evidence introduced during the suppression hearing and subsequent trial supporting the trial court\u2019s conclusion that Mrs. Washington\u2019s consent was valid. A sheriffs deputy testified the coercive threat of arrest occurred after the consent searches of the Ford automobile and the outbuildings. Mrs. Washington testified that defendant\u2019s mother-in-law produced a stolen cooler from defendant\u2019s room immediately after hearing the coercive threat; this clearly occurred after the search outdoors. Furthermore, Mrs. Washington testified she was not intimidated by the deputy\u2019s threat and would have let the officers search in any event. Considering the totality of these circumstances, there was ample, competent evidence supporting the court\u2019s determination Mrs. Washington\u2019s consent to search the outbuildings and car was given voluntarily.\nIII\nDefendant next contends that the items taken from the 1971 Ford automobile should have been suppressed. The court found defendant\u2019s mother validly consented to a search of the vehicle under N.C.G.S. 15A-222(2) (1983) which provides, \u201cthe consent must be given ... by the registered owner of a vehicle to be searched or by the person in apparent control of its operation and contents at the time the consent is given.\u201d Defendant\u2019s mother was the registered owner of the car. Defendant apparently contends that, as the \u201cactual\u201d owner/purchaser of the car, his consent was necessary as long as he was present. Defendant was clearly not the registered owner; nor was he \u201cin apparent control of [the car\u2019s] operation and contents at the time the consent [was] given.\u201d Thus, defendant was not in either instance the proper party to consent to a search of the automobile under N.C.G.S. Sec. 15A-222(2). Cf. State v. Jefferies, 41 N.C. App. 95, 100, 254 S.E. 2d 550, 554, further rev. denied, 297 N.C. 614, 257 S.E. 2d 438 (1979) (driver of automobile was deemed in apparent control of the vehicle at time of search); State v. McMillen, 59 N.C. App. 396, 403, 297 S.E. 2d 164, 168 (1982) (driver deemed in possession and control); see also State v. Faison, 17 N.C. App. 200, 201-02, 193 S.E. 2d 334, 336, cert. denied, 283 N.C. 258, 195 S.E. 2d 690 (1973) (unregistered owner/passenger properly gave consent to search). Since Mrs. Washington\u2019s consent was valid under the statute, we conclude Judge Watts committed no error in denying defendant\u2019s motion to suppress the evidence obtained from the 1971 Ford automobile.\nIV\nIn his motion to dismiss, defendant argued the trial court should not have submitted the charge of felonious breaking or entering to the jury. Defendant contended he could have come into possession of the stolen property by some means other than breaking or entering.\nA motion to dismiss requires that the trial court consider the evidence in the light most favorable to the State with every reasonable inference drawn from the evidence in the State\u2019s favor. State v. McKinney, 288 N.C. 113, 117, 215 S.E. 2d 578, 581-82 (1975). As long as there is substantial evidence, direct or circumstantial, to support finding the defendant committed the offense, a case for the jury is made. Id. The State introduced photographs of automobile tire impressions appearing at the scene of the break-in. The State also offered evidence that the tread of the rear tires of defendant\u2019s automobile appeared to be the same as the tire impressions at the scene of the crime. An SBI expert testified the tires on defendant\u2019s automobile could have made the impressions at the scene.\nFurthermore, the State argued the application of the doctrine of recent possession of stolen property was strong evidence of defendant\u2019s commission of the crimes of breaking or entering and larceny. Only nine days elapsed between the break-in and the night sheriffs deputies discovered many of the stolen items at defendant\u2019s residence. As stated in State v. Lewis, 281 N.C. 564, 568, 189 S.E. 2d 216, 219, cert. denied, 409 U.S. 1046 (1972):\nWhen it is established that a store or warehouse has been broken into and entered and that merchandise has been stolen therefrom, the discovery, soon after such theft of articles, so stolen, in the possession of the defendant raises a presumption that he is guilty both of the breaking and entering and of the larceny. [Emphasis added.]\nThe State\u2019s evidence must establish the following facts in order to invoke the doctrine of recent possession: (1) the goods were stolen; (2) the goods were in defendant\u2019s custody and control to the exclusion of others; and (3) defendant possessed the property recently after the larceny. State v. Maines, 301 N.C. 669, 674, 273 S.E. 2d 289, 293 (1981). Defendant only challenges the State\u2019s proof of the last requirement.\nIn State v. Jackson, 274 N.C. 594, 597, 164 S.E. 2d 369, 370 (1968), our Supreme Court stated:\nEvidence or inference of guilt arising from the unexplained possession of recently stolen property is strong, weak, or fades out entirely, on the basis of the time interval between the theft and possession .... The possession, in point of time, should be so close to the theft as to render it unlikely that the possessor could have acquired the property honestly. [Citations omitted.]\nIn State v. Callahan, 83 N.C. App. 323, 326, 350 S.E. 2d 128, 130, disc. rev. denied, 319 N.C. 225, 353 S.E. 2d 409 (1987), we stated the significance of the time elapsed between the larceny and the time of possession depends on the facts and circumstances of each case. We also noted the inference of defendant\u2019s guilt survives longer where the items stolen are not of a type normally or frequently traded in lawful channels. In such cases, it is more likely the defendant acquired the property by his own acts to the exclusion of any intervening agency. We therefore held in Callahan that the doctrine of recent possession was applicable where ten to eleven days had elapsed after the theft of commercial restaurant equipment. Id. See also State v. Blackmon, 6 N.C. App. 66, 77, 169 S.E. 2d 472, 479 (1969) (doctrine applicable where 27 days elapsed after theft of unique hand-made and rarely used mechanic\u2019s tool); cf. State v. Hamlet, 316 N.C. 41, 45, 340 S.E. 2d 418, 421 (1986) (doctrine rejected where 30 days elapsed after theft of television, towels and fan).\nIn the instant case, a large number of the stolen tools were painted red or yellow by the W. A. Gaskins Company and etched with the identifying initial \u201cG.\u201d We have already noted the vending machine metal work which was found by the tobacco barn. Such unique tools and metal work are not of a type normally found or traded in lawful channels; therefore, we believe the lapse of nine days does not defeat the inference of defendant\u2019s guilt arising from his possession of recently stolen property. While not all of the stolen property was recovered, defendant\u2019s possession of part of the property under these circumstances warrants the inference that defendant stole all of it. State v. Boomer, 33 N.C. App. 324, 328, 235 S.E. 2d 284, 287, cert. denied, 293 N.C. 254, 237 S.E. 2d 536 (1977).\nIn light of defendant\u2019s recent possession of the stolen items as well as evidence of tire impressions connecting him to the breaking or entering and larceny, we hold the motion to dismiss the State\u2019s charge of breaking or entering was properly denied. The test is not whether the evidence is circumstantial, but whether it is substantial. McKinney, 288 N.C. at 117, 215 S.E. 2d at 582. Taken as a whole, the State\u2019s evidence was substantial.\nV\nFinally, defendant argues the trial court did not separately \u201cconsider\u201d the aggravating and mitigating sentencing factors as to each of defendant\u2019s convictions. Specifically, the transcript of defendant\u2019s sentencing hearing reveals the trial court heard evidence of aggravating sentencing factors, then heard defendant\u2019s presentation of certain non-statutory mitigating evidence. The court then found the aggravating factors outweighed the mitigating factors and separately listed the factors for each conviction.\nDefendant asserts this procedure does not comport with our Supreme Court\u2019s holding in State v. Ahearn, 307 N.C. 584, 598, 300 S.E. 2d 689, 698 (1983):\nSeparate findings as to the aggravating and mitigating factors for each offense will facilitate appellate review. Further, in the interest of judicial economy, separate treatment of offenses, even those consolidated for hearing, will offer our appellate courts the option of affirming judgment for one offense while remanding for resentencing the offense in which error is found. . . . We therefore hold that in every case in which the sentencing judge is required to make findings in aggravation and mitigation to support a sentence which varies from the presumptive term, each offense, whether consolidated for hearing or not, must be treated separately, and separately supported by findings tailored to the individual offense and applicable only to that offense.\nIn Ahearn, defendant was found guilty of felonious child abuse and manslaughter. In imposing sentences on each count greater than the presumptive sentence, the trial judge completed only one sentencing form, \u201cthus treating both offenses alike for purposes of listing the findings in aggravation and mitigation.\u201d Id. at 592, 300 S.E. 2d at 694. Conversely, the trial court in the instant case held one sentencing hearing but completed two sentencing forms entitled \u201cFelony Judgment \u2014Findings of Factors in Aggravation and Mitigation of Punishment.\u201d Thus, unlike Ahearn, it cannot be said the court here \u201ctreat[ed] both offenses alike for purposes of listing the findings in aggravation and mitigation.\u201d\nDefendant concedes the trial court\u2019s written findings meet part of the Ahearn standard, but argues the transcript of the sentencing hearing does not reveal the offenses and sentencing factors were themselves \u201cconsidered\u201d separately. In State v. Avery, 315 N.C. 1, 337 S.E. 2d 786 (1985), defendant argued the trial court \u201cmechanically recited\u201d the same aggravating factors for each conviction without giving \u201cconsideration\u201d to the specific offenses being punished. The Supreme Court found no error, stating simply, \u201cthe record reveals the trial court made a separate finding for each crime in accordance with the rule stated in [Ahearn].\u201d Id. at 34, 337 S.E. 2d at 805. Under Ahearn and Avery, we likewise find no error in the trial court\u2019s sentencing.\nVI\nHaving found defendant\u2019s assignments of error without merit, we conclude there is\nNo error.\nJudges Wells and Eagles concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Michael Rivers Morgan, for the State.",
      "Assistant Public Defender Robert E. Dillow, Jr., for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ALLEN EDWARD WASHINGTON\nNo. 863SC877\n(Filed 7 July 1987)\n1. Searches and Seizures 8 16\u2014 defendant residing with mother \u2014 search of mother\u2019s house \u2014search of outbuildings not protected\nDefendant\u2019s possessory interest conferred standing to challenge the search of his mother\u2019s house where he regularly resided, and his protected expectation of privacy extended to the curtilage of the house as well; however, a tobacco barn, packhouse, and hog shelter which were 50 to 75 feet from defendant\u2019s residence were not so intimately associated with domestic life and the privacies of home as to be within the curtilage of defendant\u2019s residence.\n2. Searches and Seizures 8 16\u2014 outbuildings \u2014no exclusive control or privacy interest of defendant\nDefendant had no privacy interest in outbuildings by virtue of his alleged exclusive control, since defendant never used any of the outbuildings; the outbuildings were never locked or secured; and the outbuildings were in the \u201copen fields\u201d outside the curtilage of defendant\u2019s house.\n3. Searches and Seizures 8 16\u2014 defendant residing with mother \u2014 outbuildings\u2014 no exclusive control by defendant \u2014mother\u2019s consent to search proper\nThere was no merit to defendant\u2019s argument that he had such \u201cexclusive\u201d control over outbuildings that his co-occupant mother was not empowered to consent to their search, since the mother never relinquished her right of access or control in the outbuildings and could permit the search in her own right, and defendant assumed the risk that his mother might at some time permit a search.\n4. Searches and Seizures 8 16\u2014 defendant residing with mother \u2014areas controlled by both \u2014 mother\u2019s consent in presence of defendant proper\nDefendant could not complain that his mother could consent to a search of premises over which they had common authority only in his absence, since defendant was either outside the house or inside a patrol car outside the house throughout the search, but defendant did not refuse consent to the officers or communicate any refusal to his mother.\n5. Searches and Seizures 8 14\u2014 consent to search \u2014 voluntariness\nConsent to search outbuildings and a car was voluntarily given by defendant\u2019s mother, though a coercive threat of arrest was made, where the threat occurred after the consent searches of the car and outbuildings, and where the mother testified that she was not intimidated by the deputy\u2019s threat and would have let the officer search in any event.\n6. Searches and Seizures 8 18\u2014 search of vehicle \u2014 consent by defendant\u2019s mother as owner proper\nDefendant was not the proper person to consent to the search of an automobile where his mother was the registered owner of the vehicle, and he was not in apparent control of the car\u2019s operation and contents at the time the consent was given.\n7. Larceny \u00a7 7.10\u2014 nine days between taking and discovery of goods \u2014unique goods \u2014application of doctrine of possession of recently stolen property proper\nUnique tools and metal work found on premises shared by defendant and his mother were not of a type normally found or traded in lawful channels so that the lapse of nine days between their taking and their discovery did not defeat the inference of defendant\u2019s guilt arising from his possession of recently stolen property. This evidence of recent possession together with evidence of tire impressions connecting defendant to the breaking or entering and larceny was sufficient to support the charge of breaking or entering and larceny.\n8. Criminal Law \u00a7 138.14\u2014 aggravating and mitigating factors \u2014 separate findings as to separate offenses\nThere was no merit to defendant\u2019s contention that the trial court did not separately consider the aggravating and mitigating sentencing factors as to each of defendant\u2019s convictions where the court held one sentencing hearing but completed two sentencing forms.\nAPPEAL by defendant from Griffin, Jr., William C., Judge. Judgment entered 28 January 1986 in Superior Court, PlTT County. Heard in the Court of Appeals 9 February 1987.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Michael Rivers Morgan, for the State.\nAssistant Public Defender Robert E. Dillow, Jr., for defendant-appellant."
  },
  "file_name": "0235-01",
  "first_page_order": 263,
  "last_page_order": 280
}
