Dеnial of his motion for judgment of nonsuit at the close of all the evidence constitutes defendant’s sole assignment of error. The assignment turns on whether defendant’s рossession of stolen goods soon after the breaking and entering and larceny is a circumstance tending to show defendant is guilty of the breaking and entering and lаrceny. We hold the possession shown in defendant Jerry Maines in this case is insufficient to support a verdict of guilty of the breaking and entering and larceny charged in the bill of indictment. Accordingly, this defendant’s nonsuit motion should have been granted.
The State relies, as indeed it must in this case, on the doctrine of recent possеsson. That doctrine is simply a rule of law that, upon an indictment for larceny, possession of recently stolen property raises a presumption of thе possessor’s guilt of the larceny of such property.
State v. Bell,
Proof of a defendant’s recent possеssion of stolen property, standing alone, does not shift the burden of proof to the defendant. That burden remains on the State to demonstrate defendant’s guilt beyond a reasonable doubt. State v. Baker, supra. In order to invoke the presumption that the possessor is the thief, the State must prove beyond a reasonable doubt each fact necessary to give rise to the inference or presumption. When the doctrine of recent possession applies in a particulаr case, it suffices to repel a motion for nonsuit and defendant’s guilt or innocence becomes a jury question.
In summary then, the presumption spawned by possession of recently stolen property arises when, and only when, the State shows beyond a reasonable doubt: (1) the property described in the indictment was stolen; (2) the stolen goods were found in defendant’s custody and subject to his control and disposition to the exclusion of others though not necessarily found in defendant’s hands or on his person so long as he had the power and intent to control the goods;
State v. Eppley,
The possession sufficient to give rise to such inference does not require that the defendant have the article in his *675 hand, on his person or under his touch. It is sufficient that he be in such physical proximity to it that he has the power to control it to the exclusion of others and that he has the intent to control it. One who has the requisite power to control and intent to control access to and use of a vehicle or a house has also the possession of the known contents thereof.
State v. Eppley, supra,
This case turns upon the second element as outlinеd above: whether the stolen goods were found in defendant’s custody and subject to his control and disposition to the exclusion of others. What amounts to exclusive possession of stolen goods to support an inference of a felonious taking most often turns on the circumstances of the possession. The сrucial circumstances of possession in this case are: the goods were found in a car and persons other than defendant were present in the car, including the owner of the vehicle. Both fact situations have been addressed by various courts with varied results.
See Annot.,
The “exclusive” possession required to support an inference or presumption of guilt need not be a solе possession but may be joint.
State v. Holloway,
Defendant did not have actual or personal possession of the stolen рroperty. None of the goods were on his person and he did not make any conscious assertion of ownership as did Dunn. Defendant’s possession was at mоst constructive, based on the fact he was driving the car and presumably in control of it and its contents. Thus, to convict defendant, the jury must infer that defendant possessed the goods from the mere fact of driving with the owner of the car seated beside him and then infer he was the thief who stole them based on the possession of recently stolen goods. We hold this criminal conviction cannot stand because it is based on stacked inferences. “Inference may not be based оn inference. Every inference must stand upon some clear or direct evidence, and not upon some other inference or presumption.”
State v. Parker,
In ordеr to take the case against defendant Maines to the jury, the State must show something more than was shown here. For example, the State could make a case sufficient to repel nonsuit by evidence of an attempt by defendant as driver to avoid the officer when he approached the car, оr evidence that the property is obviously contraband, or some evidence at the crime scene indicating defendant had been there, or evidеnce of constant association with or customary use of the car by defendant. No legal presumption that defendant was a thief could arise from mеrely driving the car with the owner present.
Contrast State v. Lewis,
Under the particular circumstances here, we hold defendant did not have that exclusive possession of the prоperty necessary to justify an inference of guilt. Nonsuit was appropriate. The decision of the Court of Appeals upholding the denial of his motion for nonsuit is
Reversed.