State v. Smith , 40 N.C. App. 72 ( 1979 )

252 S.E.2d 535 (1979) 40 N.C. App. 72

STATE of North Carolina
v.
Raphael SMITH.

No. 7813SC721.

Court of Appeals of North Carolina.

March 6, 1979.

Atty. Gen. Rufus L. Edmisten, by Special Deputy Atty. Gen. T. Buie Costen, Raleigh, for the State.

Ray H. Walton, Southport, for defendant appellant.

MITCHELL, Judge.

The sole assignment of error presented and argued on appeal by the defendant is directed to the trial court's denial of his motion to dismiss made pursuant to G.S. 15A-1227. The defendant contends that the State failed to present sufficient evidence to sustain his conviction and that his motion should have been allowed. In support of this contention, the defendant argues that the State's evidence failed to show either that a crime was committed or that the defendant committed any criminal act.

A motion for dismissal pursuant to G.S. 15A-1227 tests the sufficiency of the evidence to sustain a conviction. In that respect it is identical to a motion for judgment as in the case of nonsuit under G.S. 15-173. See State v. Vaughan, 268 N.C. 105, 150 S.E.2d 31 (1966). Therefore, controlling cases dealing with the sufficiency of evidence to withstand a motion for judgment as in the case of nonsuit are equally applicable to the sufficiency of the evidence to withstand a motion for dismissal pursuant to G.S. 15A-1227.

Proof of a charge in a criminal case requires the proving of two distinct matters: (1) the corpus delicti or, stated differently, that the act complained of was done, and (2) that it was done by the person or persons charged. Proof of both is necessary to sustain a conviction. State v. Thomas, 296 N.C. 236, 246, 250 S.E.2d 204, 209 (1978); State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960); State v. Norggins, 215 N.C. 220, 1 S.E.2d 533 (1939).

Although it is clear that the State must offer evidence of each element of the offense charged and evidence that it was committed by the defendant, until recent years the test governing the amount or type of evidence required on each of these points has been stated in less than consistent terms. E. g.: State v. Kelly, 243 N.C. 177, 90 S.E.2d 241 (1955) ("more than a scintilla of competent evidence"); State v. Gordon, 225 N.C. 757, 36 S.E.2d 143 (1945) ("any competent evidence"); State v. Mann, 219 N.C. 212, 13 S.E.2d 247, 132 A.L.R. 1309 (1941) ("any evidence"); State v. Shermer, 216 N.C. 719, 6 S.E.2d 529 (1940) ("more than a mere scintilla"); State v. McLean, 209 N.C. 38, 182 S.E. 700 (1935) ("any evidence reasonably sufficient to go to the jury"). The more modern cases, however, seem to agree that the amount of evidence required as to each essential element in order to withstand motions for judgment as in the case of nonsuit or for dismissal is controlled by the "substantial evidence" or "more than a scintilla of evidence" test. In State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920 (1944), the Supreme Court of North Carolina strongly implied that these two tests are in fact identical and interchangeable when it specifically stated that, in order to overcome such motions, the State was required to produce "any substantial evidence —morethan a scintilla—to prove the allegations of the bill." To this day, it appears that the "more than a scintilla of evidence" test and the "substantial evidence" test are in reality only one test which is most frequently designated the "substantial evidence test." Compare, e. g., State v. Agnew, 294 N.C. 382, 241 S.E.2d 684 (1978); with State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978); and State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978).

The interchangeable use of two designations for one test, although at times somewhat confusing, would appear correct. The requirement that the State's evidence of each element be "substantial" is simply a requirement that it be existing and real, not just seeming or imaginary. Webster's Third New International Dictionary 2280 (1971). Therefore, anything more than a scintilla of evidence is "substantial evidence." See State v. Weinstein, 224 N.C. 645, 648, 31 S.E.2d 920, 923 (1944). Having so determined we must proceed to apply the substantial evidence test to the case at hand.

The defendant contends that the substantial evidence offered by the State must be consistent with guilt and inconsistent with every reasonable hypothesis of innocence in order to overcome his motion to dismiss. We are advertent to a line of cases tending to support this position. See, e. g.: State v. Langlois, 258 N.C. 491, 128 S.E.2d 803 (1963); State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960); State v. Fulk, 232 N.C. 118, 59 S.E.2d 617 (1950); State v. Frye, 229 N.C. 581, 50 S.E.2d 895 (1948); State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948); State v. Coffey, 228 N.C. 119, 44 S.E.2d 886 (1947); and State v. Harvey, 228 N.C. 62, 44 S.E.2d 472 (1947). However, it is clear that the law is otherwise. The trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence prior to denying a defendant's motion to dismiss. State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974); State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969); State v. Burton, 272 N.C. 687, 158 S.E.2d 883 (1968); State v. Davis, 246 N.C. 73, 97 S.E.2d 444 (1957); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956); State v. Griffin, 18 N.C.App. 14, 195 S.E.2d 569 (1973). In ruling upon the defendant's motion to dismiss or for judgment as in the case of nonsuit, the trial court is limited solely to the function of determining whether a reasonable inference of the defendant's guilt of the crime charged may be drawn from the evidence. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.

The controlling rule of law was best set forth in State v. Stephens, 244 N.C. 380, 383-84, 93 S.E.2d 431, 433-34 (1956). There, the Supreme Court of North Carolina speaking through Justice Higgins stated that:

We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in State v. Simmons, 240 N.C. 780, 83 S.E.2d 904, 908, quoting from State v. Johnson, 199 N.C. 429, 154 S.E. 730: "``If there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.'" The above is another way of saying there must be substantial evidence of all material elements of the offense to withstand the motion to dismiss. It is immaterial whether the substantial evidence is circumstantial or direct, or both. To hold that the court must grant a motion to dismiss unless, in the opinion of the court, the evidence excludes every reasonable hypothesis of innocence would in effect constitute the presiding judge the trier of facts. Substantial evidence of guilt is required before the court can send the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. What is substantial evidence is a question of law for the court. What that evidence proves or fails to prove is a question of fact for the jury.

Therefore, it is for the trial court to determine whether substantial evidence which will support a reasonable inference of the defendant's guilt has been introduced. The trial court having found that such evidence has been introduced, it is solely for the jury to determine whether the facts taken singly or in combination satisfy them beyond a reasonable doubt that the defendant is in fact guilty. State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978).

The State's evidence in the present case was clearly sufficient to support a reasonable inference that the crime charged had been committed. Dr. Henry Singletary, a medical doctor specializing in pathology, testified that it was possible that the amount of alcohol in the blood of the deceased caused her death. He specifically testified, however, that it was his opinion that the deceased died of a combination of a high blood alcohol level and massive injuries which suppressed the respiratory reflexes of the lungs. His testimony also indicated that these injuries could have been induced by the tobacco stick which was found broken into pieces at the scene of the death of the deceased. Therefore, Dr. Singletary's testimony constituted substantial evidence sufficient to support a reasonable inference that the crime of murder had been committed. This being the case, it was incumbent upon the trial court to permit the jury to determine whether the crime charged had in fact been committed.

Additionally, we think that substantial evidence was introduced to support a reasonable inference that the defendant committed the crime charged. In considering a motion for judgment as in the case of nonsuit or, as in the present case, a motion for dismissal pursuant to G.S. 15A-1227, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). All evidence admitted during the trial, whether competent or incompetent, which is favorable to the State must be taken as true, and contradictions or discrepancies therein must be resolved in the State's favor. State v. Agnew, 294 N.C. 382, 241 S.E.2d 684 (1978). The trial court in considering such motions is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971).

The defendant's statement, whether it be viewed as an admission or as a confession, was introduced as evidence and indicated that he was in his home during the entire night of 16 December 1977. The physical evidence located at the scene revealed the pieces of a stick which could have caused the wounds resulting in his wife's death and to which were adhered human blood together with human hairs which exhibited the same microscopic characteristics as hairs taken from her head. The "tremendous amount of broken straw from a broom" and the fact that the stick was broken into numerous pieces would support a reasonable inference that an affray sufficient to be noticed occurred in the home on the evening of the death of the deceased. Other testimony indicated the deceased was alive and uninjured with no bruises apparent at 10:00 p. m. on 16 December 1977. She was found dead shortly before 10:00 a. m. the following day with bruises covering most of her body and severe internal injuries and broken bones.

In passing on a motion to dismiss or for judgment as in the case of nonsuit, evidence favorable to the State is to be considered as a whole in order to determine its sufficiency. "This is especially necessary in a case, such as ours, when the proof offered is circumstantial, for rarely will one bit of such evidence be sufficient, in itself, to point to a defendant's guilt." State v. Thomas, 296 N.C. 236, 245, 250 S.E.2d 204, 209 (1978). We find the foregoing evidence in the present case, taken as a whole and considered in the light most favorable to the State to be substantial and sufficient to warrant a reasonable inference of the defendant's guilt. Whether it also excluded every reasonable hypothesis of innocence was not a question for the trial court, and its action in denying the motion was correct.

We are, of course, aware that those portions of the defendant's statement, if any, which tend to rebut the inference of guilt are binding upon the State if uncontradicted by other evidence. The State is not precluded, however, from showing that the facts were different in such cases. This showing may be made by testimony of other witnesses, by other statements of the defendant and from the facts and circumstances of the occurrence itself. 1 Stansbury's N.C. Evidence § 40, p. 117 and n. 92 (Brandis Rev. 1973). Here, certain portions of the defendant's statement in the nature of an admission placed him at the scene of the crime and in the company of the victim. He contends, however, that other portions of his statement tend to be exculpatory as they tend to show that someone else may have had the opportunity to kill his wife. Assuming arguendo that portions of the defendant's statement tended to be exculpatory, nevertheless, those portions were contradicted by physical evidence showing the circumstances surrounding the crime to be otherwise. The investigating officer specifically testified that he made a thorough search entirely around the outside of the mobile home for any sign of a disruption or anything out of the ordinary. A similar search was made of the interior of the mobile home and all doors and windows were checked. The search of the interior and exterior of the home produced no evidence tending to establish a breaking or entering or tending to corroborate any implications found in the defendant's statement to the effect that an intruder or some other person may have entered the home and committed the alleged crime. The arresting officer's testimony in this regard constituted some evidence, however slight, tending to negate and thereby contradict any possible implications that another person may have entered the home and committed the crime charged. Having made such showing, the State was not bound by any possible exculpatory inferences in the defendant's statement tending to indicate that another person may have had the opportunity to commit the crime charged.

The defendant places great reliance upon the case of State v. Langlois, 258 N.C. 491, 128 S.E.2d 803 (1963), for the proposition that the evidence in this case reveals only that he had a "mere opportunity" to commit the crime and will not support the trial court's ruling in permitting the case to go to the jury. Langlois is, however, easily distinguishable on its facts from the present case. In Langlois the deceased was a three and one-half year old child who "had been suffering from anemia most of his life" and who was described as being clumsy and as falling often. The child's death in that case resulted from extensive peritonitis caused by the rupture of the small intestine which had occurred twenty-four to forty-eight hours prior to death. There appears to have been no evidence as to the whereabouts of the child for most of the period of time during which the injury most probably occurred. The facts in Langlois did not present a case such as the present case in which there was substantial evidence that the defendant was present when the blows that killed his wife were struck. Therefore, we do not consider that case to be controlling authority here.

The case of State v. Coffey, 228 N.C. 119, 44 S.E.2d 886 (1947), is another case frequently cited for the proposition that evidence introduced reveals only "mere opportunity" to commit a crime which will not support a trial court's ruling permitting a given case to go to the jury. We think that, for the reasons stated by Justice Seawell in his dissent in Coffey, more recent cases have cast serious doubt upon the reliability of Coffey as binding authority with regard to the nature and amount of evidence required to show more than mere opportunity to commit a crime and, thereby, to sustain a conviction. State v. Davis, 246 N.C. 73, 97 S.E.2d 444 (1957); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). However, to whatever extent Coffey may still be taken as authoritative concerning such issues, it is easily distinguishable from the present case. In Coffey the deceased was killed while guarding a wagon load of whiskey which had been left beside a road apparently open to the general public. The defendant made an admission that he was present at the time of the acts causing the death of the deceased but contended that others had committed them. Various other witnesses, including the children of the deceased, indicated that others had been seen in the vicinity of the wagon at about the time the deceased must have been struck. Our Supreme Court found inter alia that this evidence established mere opportunity for the defendant to commit the crime and was not sufficient to require the submission of the case to the jury.

Here, however, the evidence presents a situation in which the jury could reasonably infer that the deceased was murdered in her own home in the presence of her husband. In addition, there was evidence tending to show that a thorough investigation of the outside and inside of the home as well as the immediately surrounding area revealed no indication of an intruder or the presence of other persons. This evidence tended to negate any implications arising from the statement of the defendant which might have been construed as tending to indicate that an intruder or some other person had entered the home and killed the defendant's wife. We find that such evidence for the State was substantial evidence from which a reasonable conclusion could be drawn that the defendant committed the crime charged and which required the submission of the case to the jury. Thereafter, it was solely the province of the jury to determine whether this evidence also established the defendant's guilt beyond a reasonable doubt. E. g., State v. Poole, 285 N.C. 108, 203 S.E.2d 786 (1974); State v. Horton, 275 N.C. 651, 170 S.E.2d 466 (1969); State v. Burton, 272 N.C. 687, 158 S.E.2d 883 (1968); State v. Davis, 246 N.C. 73, 97 S.E.2d 444 (1957); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). But see, e. g., State v. Langlois, 258 N.C. 491, 128 S.E.2d 803 (1963); State v. Coffey, 228 N.C. 119, 44 S.E.2d 886 (1947).

It appears that the holdings of the Court in both Langlois and Coffey were based upon an application of the rule requiring judgment as in the case of nonsuit or dismissal when the evidence considered in the light most favorable to the State failed to exclude every reasonable hypothesis of innocence. Therefore, we think that statements in those cases relative to situations in which mere opportunity to commit a crime charged have been shown are obiter dictum and not entitled to the same weight as authority given to statements which comprise the basis of a holding. For the reasons previously given, we think our Supreme Court has rejected the rule that the State's evidence must exclude every reasonable hypothesis of innocence before a case may be sent to the jury, which formed the basis of its holdings in State v. Langlois, 258 N.C. 491, 128 S.E.2d 803 (1963) and State v. Coffey, 228 N.C. 119, 44 S.E.2d 886 (1947), and that those cases are, therefore, no longer to be viewed as authoritative concerning such matters.

To hold otherwise would be to license any man to brutally murder his wife with impunity upon finding himself alone with her in their home. He would then be free to testify without contradiction by her that she was killed by some other person or that he was drunk and some other person must have killed her. When the State was unable to contradict his tale by any means other than circumstantial evidence, as would be the situation in most cases, he would be set free to scoff at the law and proclaim his criminal deed to the general public without fear of again being placed in jeopardy. We simply do not believe this to be or to have been the law of this jurisdiction. Therefore, we find no error in the trial court's denial of the defendant's motion to dismiss made pursuant to G.S. 15A-1227.

The defendant received a fair trial free from prejudicial error, and we find

No error.

MORRIS, C. J., and HARRY C. MARTIN, J., concur.