State v. Bass , 303 N.C. 267 ( 1981 )

278 S.E.2d 209 (1981)

STATE of North Carolina
v.
Danny Ray BASS.

No. 35.

Supreme Court of North Carolina.

June 2, 1981.

Rufus L. Edmisten, Atty. Gen. by William W. Melvin, Deputy Atty. Gen., Jane P. Gray, Associate Atty. Gen. and William B. Ray, Asst. Atty. Gen., Raleigh, for State.

Samuel Roberti, Durham, for defendant-appellant.

HUSKINS, Justice:

The controlling question on this appeal is whether the trial court erred in overruling defendant's motion for judgment as of nonsuit. We hold the evidence insufficient to withstand defendant's motion for nonsuit.

A motion to nonsuit requires the trial court to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. Regardless of whether the evidence is direct, circumstantial, or both, if there is evidence from which a jury could find the offense charged has been committed and that defendant committed it, the motion for nonsuit should be denied. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975); State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968). Evidence offered by the defendant is considered only to the extent it is favorable to the State or for the purpose of explaining or making clear the State's evidence, insofar as it is not in conflict therewith. State v. Price, 280 N.C. 154, 184 S.E.2d 866 (1971); State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971).

Defendant challenges the sufficiency of the identification evidence to withstand his motion for nonsuit and carry the case to the jury. The only evidence tending to show defendant was ever at the scene of the crime is four fingerprints found on the frame of a window screen on the Stephens home and identified as belonging to defendant. The State produced no evidence tending to show when they were put there, and testimony by State's witnesses was to the effect that fingerprints can last for months or even years. Defendant offered an incriminating explanation of how the prints came to be there. No other evidence connected him with the crime or its scene. The victim was unable to identify defendant as her assailant. She described her assailant as a black male, in his twenties, five feet five inches to five feet eight inches tall with a beard, soft Afro, muscular shoulders and weighing 160 to 165 pounds. Defendant was described in the record as nineteen years of age, five feet ten inches tall, with a goatee and mustache and weighing 185 pounds. The physical and scientific evidence presented, other than the fingerprints, fails to connect defendant with the crime. Blood tests were inconclusive. No hair samples could be matched. No fingerprints were found inside the house and, in particular, no fingerprints were found on objects inside the house which the assailant was known to have touched, such as the light switch and door knob. Our inquiry thus becomes whether the fingerprint evidence in this case, taken in a light most favorable to the State, is sufficient to take the case to the jury.

This Court has considered the sufficiency of fingerprint evidence to withstand a motion of nonsuit in a number of 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); State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973); State v. Foster, 282 N.C. 189, 192 S.E.2d 320 (1972); State v. Smith, 274 N.C. 159, 161 S.E.2d 449 (1968); State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951); State v. Rogers, 233 N.C. 390, 64 S.E.2d 572 (1951); State v. Reid, 230 N.C. 561, 53 S.E.2d 849, cert. denied, 338 U.S. 876, 70 S. Ct. 138, 94 L. Ed. 537 (1949); State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948); State v. Helms, 218 N.C. 592, 12 S.E.2d 243 (1940); State v. Huffman, 209 N.C. 10, 182 S.E. 705 (1935); State v. Combs, 200 N.C. 671, 158 S.E.2d 252 (1931). These cases establish that when the State relies on fingerprints found at the scene of the crime, in order to withstand motion for nonsuit, there must be substantial evidence of circumstances from which the jury can find that the fingerprints could have been impressed only at the time the crime was committed. As stated in State v. Miller, supra, and quoted in State v. Scott, supra:

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.

289 N.C. at 4, 220 S.E.2d at 574, quoted in, 296 N.C. at 523, 251 S.E.2d at 417.

An analysis of the evidence in the present case in light of the foregoing principles reveals that the State did not offer substantial evidence that the prints could only have been placed on the window screen frame at the time of the 23 June break-in, larceny and rape. The State's evidence establishes only these facts and circumstances: (1) four latent prints found on a window screen of the house in which the crimes charged were committed had eleven points of similarity with known inked impressions of defendant's prints; (2) no prints of defendant were found inside the house and (3) when informed of the presence of his fingerprints at the scene and asked why they were there and if he entered the house, defendant responded, "I can't say that I did. I don't know. I am not going to say I did and I am not going to say I didn't." This evidence does not constitute "substantial evidence" that defendant's prints could only have been imprinted at the time the crimes charged were committed. The burden is not upon defendant to explain the presence of his prints but upon the State to prove his guilt. State v. Scott, supra. Defendant's evidence at trial does, however, tend to explain the presence of the prints and clarifies the ambiguous statement to the investigating officers in this way: He was on the premises three or four weeks before and he, at that time, broke and entered the home and committed a larceny. Stephens and an officer verified a 23 May 1979 break-in which closely followed in detail the break-in defendant admitted committing. Defendant offered an explanation for the presence of the prints which, if true, exculpated him of the 23 June offenses. The State has offered no explanation of its own for the presence of the prints and no additional evidence which connects defendant to the crime.

This case should be contrasted with State v. Miller, supra, where fingerprint evidence was held sufficient to withstand a nonsuit motion. In that case, defendant's thumbprint was found on a vending machine lock at a crime scene. No other fingerprints were found at the scene. When informed of the presence of his fingerprint, he denied ever being on the crime scene. In the present case, defendant admits to a specific time when he was in the building which explains the presence of the prints and destroys the State's case absent some evidence tending to show that the prints could only have been impressed at the time the crimes charged were committed, thus raising a question for the jury.

The present case is more analagous to State v. Scott, supra, wherein this Court reversed the denial of a nonsuit motion. In that case, the only evidence tending to show defendant was ever in the home where an attempted robbery and murder occurred was a thumbprint on a metal box found in the den on the day the crimes were committed. The defendant had never been seen in the home and only family members handled the metal box. We held this did not constitute substantial evidence that defendant's thumbprint could only have been imprinted on the box during the course of the crimes, since the State's only witness who resided at the scene of the crime testified she worked in a nearby city five days each week and did not have an opportunity to observe during the weekdays who came to visit or do business with the deceased. The Court concluded this evidence was sufficient to raise a strong suspicion of defendant's guilt but insufficient to remove the issue from the realm of suspicion and conjecture. The circumstantial evidence in the present case is even less substantial than the evidence offered in Scott.

Defendant's motion to nonsuit should have been allowed. The case is remanded to the Superior Court of Durham County for entry of a judgment of nonsuit. Of course, if the State so elects, defendant may be tried for the felonies he testified on oath he committed on 23 May 1979 at the Stephens home.

REVERSED.