State v. Mason

Court of Appeals of North Carolina

State v. Mason

331 S.E.2d 767, 76 N.C. App. 154, 1985 N.C. App. LEXIS 3724

CourtCourt of Appeals of North Carolina

DecidedJuly 16, 1985

DocketNo. 853SC100

StatusPublished

This text of 331 S.E.2d 767 (State v. Mason) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Mason, 331 S.E.2d 767, 76 N.C. App. 154, 1985 N.C. App. LEXIS 3724 (N.C. Ct. App. 1985).

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Opinion

ARNOLD, Judge.

Defendant argues on appeal that the trial court erred when it admitted evidence of fingerprint identification in the absence of sufficient evidence to show that the fingerprints could only have been placed on the victim’s vehicle at the time of the crime. Fingerprint evidence is admissible to corroborate the prosecuting witness’s identification of defendant as the perpetrator of the charged crime. State v. Banks, 295 N.C. 399, 412, 245 S.E. 2d 743, 751-52 (1978). Ordinarily, the question of whether the fingerprints could have been impressed only at the time the crime was committed is a question of fact for the jury and is not a question of law to be determined by the court prior to the admission of fingerprint evidence. State v. Irick, 291 N.C. 480, 489, 231 S.E. 2d 833, 839 (1977).

Further, the State does not rely primarily on the fingerprint evidence for identification of the defendant as the assailant. Both the victim and her assistant identified defendant. We find no reversible error in the trial judge’s admission of the fingerprint evidence.

Defendant argues that the trial court erred by failing to instruct the jury on the lesser included offense of unauthorized use of an automobile. Defendant objected to the trial court’s instructions before the jury retired to consider its verdict, as required by Rule 10(b)(2), Rules of Appellate Procedure. The trial judge must charge on a lesser included offense only when there is evidence which would support a conviction of the lesser crime. State v. Bell, 228 N.C. 659, 663, 46 S.E. 2d 834, 837 (1948). The evidence shows that the victim’s car was found within five blocks of her office. The defendant was staying in the same vicinity, within two blocks of the victim’s office. The jury could have reasonably concluded that the defendant did not intend to deprive the victim of her car permanently. The requested charge on the lesser included offense of unauthorized use of a motor vehicle should have been given.

Reversed as to the larceny charge, and remanded for new trial.

Chief Judge HEDRICK and Judge PARKER concur.

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ARNOLD, Judge.

Defendant argues on appeal that the trial court erred when it admitted evidence of fingerprint identification in the absence of sufficient evidence to show that the fingerprints could only have been placed on the victim’s vehicle at the time of the crime. Fingerprint evidence is admissible to corroborate the prosecuting witness’s identification of defendant as the perpetrator of the charged crime. State v. Banks, 295 N.C. 399, 412, 245 S.E. 2d 743, 751-52 (1978). Ordinarily, the question of whether the fingerprints could have been impressed only at the time the crime was committed is a question of fact for the jury and is not a question of law to be determined by the court prior to the admission of fingerprint evidence. State v. Irick, 291 N.C. 480, 489, 231 S.E. 2d 833, 839 (1977).

Further, the State does not rely primarily on the fingerprint evidence for identification of the defendant as the assailant. Both the victim and her assistant identified defendant. We find no reversible error in the trial judge’s admission of the fingerprint evidence.

Defendant argues that the trial court erred by failing to instruct the jury on the lesser included offense of unauthorized use of an automobile. Defendant objected to the trial court’s instructions before the jury retired to consider its verdict, as required by Rule 10(b)(2), Rules of Appellate Procedure. The trial judge must charge on a lesser included offense only when there is evidence which would support a conviction of the lesser crime. State v. Bell, 228 N.C. 659, 663, 46 S.E. 2d 834, 837 (1948). The evidence shows that the victim’s car was found within five blocks of her office. The defendant was staying in the same vicinity, within two blocks of the victim’s office. The jury could have reasonably concluded that the defendant did not intend to deprive the victim of her car permanently. The requested charge on the lesser included offense of unauthorized use of a motor vehicle should have been given.

Reversed as to the larceny charge, and remanded for new trial.

Chief Judge HEDRICK and Judge PARKER concur.

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331 S.E.2d 767, 76 N.C. App. 154, 1985 N.C. App. LEXIS 3724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mason-ncctapp-1985.

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