Opinion
No. 8127SC1069
Filed 18 May 1982
Criminal Law 60.5 — sufficiency of fingerprint evidence to withstand motion to dismiss In an action in which defendant was charged with the larceny of a truck, the evidence was sufficient to support jury findings that: (1) a fingerprint lifted from the inside mirror of the truck was the defendant's fingerprint; (2) this fingerprint was placed there by defendant at the time alleged in the bill of indictment; and (3) the defendant was the person who committed the crime charged in the bill.
APPEAL by defendant from Friday, Judge. Judgment entered 8 May 1981 in Superior Court, GASTON County. Heard in the Court of Appeals 9 March 1982.
Attorney General Edmisten, by Assistant Attorney General Robert R. Reilly, for the State.
Assistant Public Defender, 27A Judicial District, Kellum Morris for defendant appellant.
Judge MARTIN (Robert M.) dissenting.
Defendant was charged with breaking or entering into the home of James T. Grindle and larceny therefrom. He was also charged in a separate indictment with felonious larceny of Grindle's pickup truck. The breaking or entering and larceny charges were dismissed, and he was convicted of the felonious larceny of the truck belonging to Grindle. Grindle's home was for sale. He began work at 6:00 a.m. on 18 November 1980, and his wife left the home for work about 6:00 a.m. He had two sets of keys for the truck; the "extra" keys were left hanging under the telephone near the kitchen sink.
A realtor, Helen Johnson, showed the Grindle home to defendant and his mother about 11:00 a.m. on 18 November 1980 They entered the house by a key the realtor had. While in the house, Ms. Johnson did not see defendant pick up anything in the house. There were no vehicles on the premises while they were there.
Mr. and Mrs. Grindle returned to the house about 3:00 p.m. When they left to take Mrs. Grindle to work at her second job, the pickup truck was at the house. It was unlocked and the keys were on the kitchen sink. When Grindle returned about 9:45 p.m., he found the truck was missing, along with two television sets, a CB radio, and "a couple of electric razors." The front door was open. He located the truck about two days later and notified the police.
The police lifted a fingerprint from the inside mirror in the truck and it was identified as being made by the right thumb of the defendant.
Defendant's evidence showed that his mother was with him constantly until about 6:00 p.m. when defendant and his brother went to visit another brother. They returned in about an hour and defendant remained at home the rest of the night. Defendant is an epileptic, does not drive a car, and does not have a driver's license. Defendant's brother Ralph testified that defendant and another brother, Hubert, came to his house that evening about 6:00 or 6:30 and stayed about an hour.
The decisive question on this appeal is whether the trial court erred in denying the defendant's motion to dismiss at the close of all the evidence. Such a motion requires the court to consider all the evidence in the light most favorable to the state. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). In this case the state relies in part upon circumstantial evidence. If, however, there is substantial evidence to support a finding that the offense charged has been committed and that defendant committed it, the motion to dismiss should be denied whether the evidence is direct, circumstantial, or both. Id.
The only evidence tending to show that defendant was ever in James T. Grindle's truck is a latent fingerprint found on the inside rearview mirror of the truck on 20 November 1980. The determinative question, therefore, is whether the state offered substantial evidence that the fingerprint could only have been placed on the mirror at the time of the larceny of the truck.
The sufficiency of fingerprint evidence to withstand a motion to dismiss has been considered by our Supreme Court in numerous cases. See, e.g., State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979); State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977); State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975). Justice Huskins stated the applicable principles in State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975):
These cases establish the rule that testimony by a qualified expert that fingerprints found at the scene of the crime correspond with the fingerprints of the accused, when accompanied by substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed, is sufficient to withstand motion for nonsuit and carry the case to the jury. The soundness of the rule lies in the fact that such evidence logically tends to show that the accused was present and participated in the commission of the crime.
What constitutes substantial evidence is a question of law for the court. What the evidence proves or fails to prove is a question of fact for the jury. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956).
Circumstantial evidence that the fingerprint could only have been impressed at the time the crime was committed comes in several different forms. See Annot., 28 A.L.R.2d 1115, 1154-57 (1953); Scott, supra. When a defendant takes the stand and denies that he was ever at the scene of the crime, his inability to offer a plausible explanation of the presence of his fingerprints is some evidence of guilt. Coupled with the appearance of his fingerprints at the scene, it may be enough to send the case to the jury. Miller, supra.
The defendant did not testify, but evidence for the state and defendant indicates that defendant and his mother were in the Grindle home on the morning of 18 November 1980. Although the truck was not on the premises at the time defendant was in the Grindle home, an ignition key to the truck was evidently in the kitchen. Grindle had two sets of keys for his truck. He had never seen the defendant before the theft. Defendant's evidence established an alibi as his defense. There was no evidence of forcible entry into Grindle's home or that his truck had been "straight wired" in order to start it.
All the evidence, therefore, leads to the logical and permissible inference that defendant's fingerprint could only have been impressed on the truck at the time of the robbery. All the evidence shows that defendant never had any contact with the truck except at the time of the robbery.
When considered in the light most favorable to the state, the evidence is sufficient to support jury findings that: (1) the fingerprint lifted from the inside mirror of the truck was the defendant's fingerprint; (2) this fingerprint was placed there by defendant at the time alleged in the bill of indictment; and (3) the defendant was the person who committed the crime charged in the bill. State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973). The evidence satisfies the rule of Miller, supra, and the case was properly presented to the jury.
We find no merit in defendant's contentions that the fingerprint evidence was improperly allowed into evidence, State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973), or that the witness Sipe was not properly qualified as an expert in the field of fingerprint identification, 1 Stansbury's N.C. Evidence 133 (Brandis rev. 1973).
No error.
Judge WHICHARD concurs.
Judge MARTIN (Robert M.) dissents.