Rhyne v. United States , 1985 D.C. App. LEXIS 395 ( 1985 )

NEBEKER, Associate Judge,

concurring in the result:

I believe that the government is entitled to a fuller understanding than is given in the court’s opinion of why the precedents on which it relies are distinguishable here and thus deemed not persuasive or binding. I conclude, as does the majority, that the evidence is insufficient in these unique circumstances. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The government’s burden, when it relies on fingerprint evidence, is to negate at least the most reasonable explanations of that evidence which are consistent with innocence, and to show that the fingerprints were made during the commission of the crime. In re M.M.J., 341 A.2d 421 (D.C. 1975). In M.M.J., the print was found on a transom over an inside door, an area generally inaccessible to the public and to the appellant in that case; the government introduced evidence tending to show lack of access in fact by appellant. Id. at 423. In Hawkins v. United States, 329 A.2d 781 (D.C.1974), Hawkins’ fingerprints were found on the front of a ransacked dresser, located in the robbery victim’s bedroom. Although Hawkins may have visited her home on one occasion, two months before the robbery, the victim’s testimony precluded any reasonable possibility that he would have touched the dresser where the print was found. Id. at 782. Finally, in Patten v. United States, 284 A.2d 182 (D.C.1968), Patten’s fingerprints were on a paper bag which contained burglary tools and which was found beside a broken skylight over a store, in an area generally inaccessible to appellant or to any member of the public. Id. at 183.

Here, Rhyne did have access, with permission, to the room where the stereo equipment was kept, if not to the specific area of the equipment. The evidence presented does not rule out an innocent, although unauthorized, touching of the dustcover — particularly since we cannot be certain where the dustcover, which appears to have been totally removable, may have been in relation to the stolen items at the time of the burglary in an active household in which the stereo equipment was regularly used.

I also respectfully disagree with the statement in the court’s opinion that because there was no testimony or other evidence that the entry was not forced, there was no evidence from which the jury could reasonably conclude that the entry was not forced. I believe a legitimate inference that entry into the house was not forced may be drawn from the owner’s and the maid’s testimony regarding the circumstances of the discovery of the theft: the house was left so undisturbed that the family did not realize a burglary had taken place until they noticed the stereo was missing. Here, the inference is bolstered by the fact that nothing in the house other than the stereo equipment was removed in the August burglary. The circumstances tend to rule out a burglar who needed to enter by force, not knowing another way in, and not knowing the location of a targeted valuable and relatively portable item.