Appeal by defendant from Friday, Judge. Judgment entered 8 May 1981 in Superior Court, Gaston County. Heard in the Court of Appeals 9 March 1982.
Martin (Harry C.), Judge. Judge Whichard concurs. Judge Martin (Robert M.) dissents.
The decisive question on this appeal is whether the trial court erred in denying the defendant's motion to dismiss at the close of all the evidence. Such a motion requires the court to consider all the evidence in the light most favorable to the state. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). In this case the state relies in part upon circumstantial evidence. If, however, there is substantial evidence to support a finding that the offense charged has been committed and that defendant committed it, the motion to dismiss should be denied whether the evidence is direct, circumstantial, or both. Id.
The only evidence tending to show that defendant was ever in James T. Grindle's truck is a latent fingerprint found on the inside rearview mirror of the truck on 20 November 1980. The determinative question, therefore, is whether the state offered substantial evidence that the fingerprint could only have been placed on the mirror at the time of the larceny of the truck.
The sufficiency of fingerprint evidence to withstand a motion to dismiss has been considered by our Supreme Court in numerous 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). Justice Huskins stated the applicable principles in State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975):
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. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956).
Circumstantial evidence that the fingerprint could only have been impressed at the time the crime was committed comes in several different forms. See Annot., 28 A.L.R. 2d 1115, 1154-57 (1953); Scott, supra. When a defendant takes the stand and denies that he was ever at the scene of the crime, his inability to offer a plausible explanation of the presence of his fingerprints is some evidence of guilt. Coupled with the appearance of his fingerprints at the scene, it may be enough to send the case to the jury. Miller, supra.
The defendant did not testify, but evidence for the state and defendant indicates that defendant and his mother were in the Grindle home on the morning of 18 November 1980. Although the truck was not on the premises at the time defendant was in the Grindle home, an ignition key to the truck was evidently in the kitchen. Grindle had two sets of keys for his truck. He had never seen the defendant before the theft. Defendant's evidence established an alibi as his defense. There was no evidence of forcible entry into Grindle's home or that his truck had been "straight wired" in order to start it.
All the evidence, therefore, leads to the logical and permissible inference that defendant's fingerprint could only have been impressed on the truck at the time of the robbery. All the evidence shows that defendant never had any contact with the truck except at the time of the robbery.
When considered in the light most favorable to the state, the evidence is sufficient to support jury findings that: (1) the fingerprint lifted from the inside mirror of the truck was the defendant's fingerprint; (2) this fingerprint was placed there by defendant at the time alleged in the bill of indictment; and (3) the defendant was the person who committed the crime charged in the bill. State v. Jackson, 284 N.C. 321, 200 S.E.2d 626 (1973). The evidence satisfies the rule of Miller, supra, and the case was properly presented to the jury.
We find no merit in defendant's contentions that the fingerprint evidence was improperly allowed into evidence, State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973), or that the witness Sipe was not properly qualified as an expert in the field of fingerprint ...