Appeal by defendant from Preston, Judge. Judgment entered 13 March 1981 in Superior Court, Wake County. Heard in the Court of Appeals 14 January 1982.
Hill, Judge. Judge Hedrick and Becton concur.
The State's evidence tended to show that at 7:00 p.m. on the night of 13 October 1979, the family of Robert Beverly Herbert, Jr. left their house on Reid Street in Raleigh to attend a concert. The came home about 11:00 p.m., and Herbert's wife discovered that her jewelry box was empty. After discovering other evidence of theft, Herbert called the police. Herbert and the police discovered a heavily damaged side door and lock mechanism. "Both the lock mechanism and the door appeared as if someone had been prying at it with a crowbar or something." A few feet away, they discovered that the screen had been removed from the downstairs bathroom window, and the window had been pushed open from the bottom. Nothing was taken from the house but jewelry an silver items.
The only jewelry item recovered was Herbert's wife's diamond ring. Herbert testified that on 13 October, the emerald cut diamond, approximately eight-tenths of a carat, was set in white gold mounting with a yellow gold ring. Herbert further testified that
[w]hen we got back what was returned to us, the diamond had been cut out. The ring was gone. The diamond was still in its original white gold prongs, but there was only a minute fraction, just say a sixteenth of an inch of the yellow gold visible on either side of that, and the rest of the ring had been cut away. So it was made into another ring just exactly like the first. It still has the original prongs.
Various silver items belonging to Herbert also were recovered.
The State offered additional evidence from Sandra Adams Andrews, defendant's counsin and sister-in-law, who testified under an agreement with the State. Andrews testified that she, her husband, and defendant had been involved in several break-ins. On the night of 14 October 1979, Andrews was at home when she saw defendant about 9:00 p.m. Defendant showed her a diamond and asked if she would buy it. "The stone was like an emerald cut, a stone, it was not a ring. It was a stone that was in the prongs." Andrews bought the diamond for $200. When she was shown at trial the diamond Herbert had mounted onto another ring, Andrews identified it as "the stone that I purchased from Willard Andrews, the top part. It was cut off, I'll say about here (indicating) and it was just this and the prongs."
Defendant offered evidence tending to show that he was in New Jersey on 13 October 1979. John Branca, defendant's former brother-in-law, testified that defendant brought a 1973 Gremlin automobile to his business, where Branca put on two tires, "adjusted his car and changed the oil in it." Defendant stayed in New Jersey for dinner on 14 October at approximately 2:00 p.m., and left around 4:30 p.m. Carmen Branca, also defendant's former brother-in-law, corroborated John Branca's testimony.
In defendant's first two arguments, he challenges the sufficiency of Andrews' identification of the diamond allegedly stolen from Herbert's home and the sufficiency of that testimony to support his conviction of possession of stolen property.
Defendant correctly states that the identification of the diamond by Andrews is the only evidence which connects him with stolen property. Possession of such property, of course, is a necessary element of the offense of possessing stolen goods. See G.S. 14-71.1.
While ordinarily the credibility of witnesses and the weight to be given their testimony is exclusively a matter for the jury, this rule does not apply when the only testimony justifying submission of the case to the jury is inherently incredible and in conflict with the physical conditions established by the State's own evidence.
State v. Wilson, 293 N.C. 47, 51, 235 S.E.2d 219, 221 (1977). This rule is based upon State v. Miller, ...