State v. Berry, 58 N.C. App. 355

State v. Berry

58 N.C. App. 355 | N.C. Ct. App. | 1982

Lead Opinion

WEBB, Judge.

The defendant first assigns error to the denial of his motion to dismiss. He contends the case should have been dismissed because the evidence as to his fingerprint found at Mrs. Swart’s house was not sufficient to support a conviction. We agree that without the fingerprint there is not sufficient evidence to convict the defendant in this case. When the State relies on a fingerprint found at the scene of the crime, in order to withstand a motion to dismiss, there must be substantial evidence of circumstances from which the jury can find that the fingerprint could have been impressed only at the time the crime was committed. The defendant *357relies on State v. Bass, 303 N.C. 267, 278 S.E. 2d 209 (1981), and State v. Scott, 296 N.C. 519, 251 S.E. 2d 414 (1979). In Bass our Supreme Court held that fingerprint evidence was not sufficient to support a conviction when the defendant testified he had attempted to break into the residence two weeks prior to the breaking for which he was being tried. An officer verified the attempted break-in admitted by the defendant closely followed in detail the attempted break-in as shown by the police investigation. In Scott our Supreme Court held fingerprint evidence was not sufficient to convict the defendant of murder. In that case the niece of the victim lived in the house with him but left home each weekday from 7:00 a.m. until approximately 6:00 p.m. She testified that to her knowledge the defendant had never been in the house. Our Supreme Court held there was not substantial evidence of circumstances from which the jury could find the fingerprints could have been impressed only at the time the crime was committed. The Supreme Court said the niece of the deceased could not say the defendant was not on the premises at some time when she was not present. The Supreme Court in Scott distinguished State v. Tew, 234 N.C. 612, 68 S.E. 2d 291 (1951), on the ground that in Tew the proprietor of a service station testified that she personally attended the service station and was able to testify of her own knowledge that the defendant had never visited the station. In Tew this was held to be substantial evidence from which the jury could find the fingerprints could have been impressed only at the time the crime was committed. We believe we are bound by Tew. In this case the prosecuting witness, who was the only person living in the house, testified that she did not know the defendant and to her knowledge he had never been in her house. The defendant contends the fact that the prosecuting witness testified that her children came home unexpectedly from time to time is evidence from which it could be concluded that the defendant could have been to the house when the children were there and Mrs. Swart was not. We do not believe the rule is that when the sole occupant of a house has testified that he or she does not know the defendant and to his or her knowledge the defendant has never been in his or her home, the State must then put on evidence from every person who might have brought a visitor to the house that he or she has not invited the defendant to the house. The defendant’s first assignment of error is overruled.

*358In his second assignment of error the defendant contends the court should have submitted to the jury misdemeanor breaking or entering in addition to felonious breaking or entering. The defendant relies on State v. Worthey, 270 N.C. 444, 154 S.E. 2d 515 (1967); State v. Jones, 264 N.C. 134, 141 S.E. 2d 27 (1965); and State v. Biggs, 3 N.C. App. 589, 165 S.E. 2d 560 (1969). Those cases involved breakings or enterings where nothing was taken or disturbed inside the building and from this it could be inferred the defendants did not intend to take anything. In this case all the evidence showed a television set had been moved from the den to the front door. All the evidence was to the effect that whoever broke into Mrs. Swart’s house intended to take the television set. This would make it a felonious breaking or entering. There was no evidence of a misdemeanor breaking or entering.

No error.

Judge CLARK concurs. Judge WHICHARD dissents.

Dissenting Opinion

Judge WHICHARD

dissenting.

I find State v. Scott, 296 N.C. 519, 251 S.E. 2d 414 (1979), rather than State v. Tew, 234 N.C. 612, 68 S.E. 2d 291 (1951), the controlling authority. In Scott the State’s key witness worked outside the home where the fingerprint in question was found. She was generally absent from the home from early morning until late afternoon. The Supreme Court noted that she thus was unable to testify from her personal knowledge as to who visited the home during her absence. Scott, 296 N.C. at 526, 251 S.E. 2d at 418. It reversed defendant’s conviction, stating;

In the absence of additional evidence, it is not unreasonable to infer that the defendant’s fingerprint might have been impressed ... at some time prior to the homicide. In short, the evidence presented by the State does not substantially exclude the possibility that the defendant might have visited the house for some lawful or unlawful purpose in the weeks preceding the murder.

Id. at 526, 251 S.E. 2d at 418-19.

*359Here, absent the victim’s testimony that her children had access to the house and came home unexpectedly from time to time, I would agree that State v. Tew, supra, controls. See also State v. Dorsett, 18 N.C. App. 318, 196 S.E. 2d 591 (1973). In my view, however, that testimony places this case within the rationale and holding in Scott. Because her children had access to the house and came there unexpectedly at times, and because the victim was generally away from the house during the day, the victim, like the witness in Scott, “was simply not in a position to know who came into the house” during her absence. Scott, 296 N.C. at 526, 251 S.E. 2d at 419. Absent evidence that the children had not granted defendant access, the evidence presented by the State does not “substantially exclude the possibility” that defendant visited the house at the behest of one or more of the victim’s children at a time other than when the breaking occurred. Id.

I concurred in the majority opinion in State v. Strange, 57 N.C. App. 263, 291 S.E. 2d 320 (1982), because I found it distinguishable from Scott in that there was in Strange, in addition to the fingerprint evidence, evidence that (1) the defendant had been in the victim’s house on the day the victim’s truck was discovered to be missing, and (2) an ignition key to the truck “was evidently in the kitchen” when defendant was there. Strange, 57 N.C. App. at 266, 291 S.E. 2d at 322. This evidence, combined with the fingerprint evidence, created a “logical and permissible inference that defendant’s fingerprint could only have been impressed on the truck at the time of the robbery.” Id.

Further, in Strange there was no evidence which suggested a reasonable inference that defendant might have been in the victim’s truck for some other purpose at a time other than that of the theft. Here, by contrast, the evidence regarding the victim’s children having access to her house and visiting there during her absence precludes the “substantial exclusion” of such a possibility which Scott appears to require.

Under the facts here, I find the Scott rationale and holding controlling. Because I believe that to uphold denial of the motion to dismiss would be inconsistent with Scott, I am compelled to vote to reverse.