State v. Smart

394 S.E.2d 475 (1990) 99 N.C. App. 730

STATE of North Carolina, Plaintiff-Appellee,
v.
Robert DeWitt SMART, Defendant-Appellant.

No. 8921SC1052.

Court of Appeals of North Carolina.

August 7, 1990.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Ralph B. Strickland, Jr., Raleigh, for the State.

David F. Tamer, Winston-Salem, for defendant-appellant.

ARNOLD, Judge.

Defendant's first assignment of error is that the trial court improperly denied his motion to dismiss the charge for lack of substantial evidence. Of course when considering a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, and the evidence must be such that a jury could reasonably find the essential elements of the crime charged beyond a reasonable doubt. State v. Thomas, 65 N.C.App. 539, 309 S.E.2d 564 (1983). Specifically, defendant argues that the State's case rests on the evidence that defendant's fingerprint was found on a glass left in the victim's kitchen, and that the State failed to provide substantial evidence that the fingerprint could have been impressed only at the time of the crime. See State v. Bass, 303 N.C. 267, 278 S.E.2d 209 (1981).

We disagree with defendant's contention here. The evidence presented at trial showed that defendant's fingerprint could have been impressed on the victim's drinking glass in her home only between 11:00 a.m. on 20 July 1987 and 10:00 a.m. on 21 July 1987. The victim was murdered between 8:30 p.m. on 20 July 1987 and midnight of the same day. Furthermore, the evidence presented showing the victim was a meticulous housekeeper tends to eliminate other theories about when the fingerprint was placed on the glass. Had defendant broken into victim's home earlier in the day on 20 July and stopped for a drink before he left, the victim would have noticed the glasses upon her return and either washed the glasses and put them away or, even more likely, told someone of the break-in. Ms. Howse's home had been burglarized only three months earlier and she had promptly reported that break-in and provided police with a list of the items stolen. Had defendant broken into the house after the murder, it is not likely that he would have stopped in the kitchen for a casual drink.

Moreover, other substantial evidence was presented. The victim's automobile, stolen the night of the homicide, was recovered the next day eight miles from the victim's home, but less than one thousand feet from defendant's residence. And a watch, identified as belonging to the victim, was found in defendant's automobile. We hold the evidence in this case was sufficient to survive the motion to dismiss.

Next, defendant contends no evidence was presented to support the trial court's instruction to the jury on the theory of acting in concert. Defendant argues that such instruction allowed the jury to return a verdict of guilty on a theory unsupported by any evidence presented. Only jury instructions based on a fact or facts presented by a reasonable view of the evidence should be given. State v. Harrill, 289 N.C. 186, 221 S.E.2d 325, death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211 (1976). To determine whether an instruction should be given, the court must consider whether there is any fact to convict the defendant of the offense. State v. Moore, 75 N.C.App. 543, 331 S.E.2d 251, cert. denied, 315 N.C. 188, 337 S.E.2d 862 (1985).

To secure a conviction on the theory of acting in concert, the State must show defendant was present at the scene of the crime and that he acted together with another individual who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the offense. State v. Williams, 299 N.C. 652, 263 S.E.2d 774 (1980). The State's evidence supporting the instruction on acting in concert came from a latent fingerprint lifted from a lamp shade found in the spare bedroom where the struggle occurred. The police never identified the person to whom the print belonged. Detective K. W. Bishop of the Winston-Salem Police Department testified that the lamp shade was attached to one of the weapons used to assault and murder Ms. Howse. Furthermore, Detective Bishop was convinced that whoever put the print on the lamp shade was present at the time the crime was committed, and he stated that if he knew the identity of that person he would arrest him or her for the murder of Brenda Howse. We hold that the evidence of the unidentified latent fingerprint supported the jury instruction concerning the theory of acting in concert.

Next, defendant contends that the trial judge erred in finding as an aggravating factor that the offense was especially heinous, atrocious or cruel pursuant to N.C.Gen.Stat. § 15A-1340.4(a)(1)f (1988). The trial judge relied on this aggravating factor and also the finding that defendant had a prior conviction pursuant to G.S. § 15A-1340.4(a)(1)o to sentence defendant to a prison term in excess of the presumptive. To find that an offense meets the standard for G.S. 15A-1340.4(a)(1)f, the facts must show excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that type of offense. State v. Newton, 82 N.C.App. 555, 347 S.E.2d 81 (1986), cert. denied, 318 N.C. 699, 351 S.E.2d 756 (1987).

Here the evidence showed that the homicide involved a violent struggle in which the victim's scalp was torn away from her skull; her torso, head and face were severely bruised from the blows she received; and she lost a tremendous amount of blood. Her body and the floor around her body were covered with blood, and blood was splattered on the walls of the room. Her lungs and trachea were full of blood. The victim was beaten and stabbed so many times it is not entirely clear whether a blow or the knife wound was the actual cause of death. Multiple injuries such as those found here may demonstrate that a crime was committed in an especially heinous, atrocious or cruel manner. State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983). There was also evidence that the victim was sexually molested. Clearly, the evidence was sufficient to establish this aggravating factor.

Finally, defendant asserts that the trial court erred in overruling his objection to the introduction into evidence of the victim's watch. Defendant, however, has completely failed to provide the Court with any citation of authority for his position. Therefore, we deem this assignment of error abandoned. Byrne v. Bordeaux, 85 N.C.App. 262, 354 S.E.2d 277 (1987); S.J. Groves & Sons & Co. v. State, 50 N.C.App. 1, 273 S.E.2d 465 (1980), cert. denied, 302 N.C. 396, 279 S.E.2d 353 (1981).

We hold that defendant received a fair trial, free of prejudicial error.

No error.

PHILLIPS and COZORT, JJ., concur.