STATE of North Carolina
v.
Curtis Lee BRADLEY.
No. 833SC193.
Court of Appeals of North Carolina.
December 6, 1983.*512 Atty. Gen. Rufus L. Edmisten by Lucien Capone, III, Asst. Atty. Gen., Raleigh, for the State.
Ann B. Peterson, Asst. Appellate Defender, Raleigh, for defendant-appellant.
VAUGHN, Chief Judge.
Defendant, in his first argument, contends that the evidence was insufficient to withstand his motion to dismiss.
On a motion to dismiss, the evidence must be reviewed in the light most favorable to the State, with the State receiving the benefit of every reasonable inference to be drawn therefrom. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). If there is sufficient evidence that the offenses charged were committed and that defendant was the perpetrator, then the motion is properly denied. State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982); State v. Powell, supra. It is immaterial whether the evidence is direct, circumstantial, or both. State v. Scott, 296 N.C. 519, 251 S.E.2d 414 (1979). In light of the foregoing, defendant's motion was properly denied.
There is no question in this case that a crime was committed. The question, then, is defendant's guilt, which the State attempted to prove primarily through the use of fingerprint evidence. Robert Duncan, a qualified fingerprint expert, testified that the palmprint on the window matched defendant's. The rule in a case involving fingerprint evidence is that a motion for dismissal or nonsuit is properly denied if, in addition to testimony by a qualified expert that the fingerprints at the scene of the crime match those of the accused, there is substantial evidence of circumstances from which a jury could find that the fingerprints were impressed at the time the crime was committed. State v. Scott, supra; State v. Miller, 289 N.C. 1, 220 S.E.2d 572 (1975). What is substantial evidence is a question of law for the Court; what the evidence proves or not is a question for the jury. State v. Scott, supra.
In this case, there was substantial evidence from which a jury could find that defendant's print had been impressed at the time of the crime. Mr. Paramore, an accountant in the firm broken into, testified that he had never before seen defendant in the building. The window on which defendant's print was found led to the firm's computer room, not open to the general public, other than the accountants and staff employees. Defendant had never been employed by the accounting firm. The circumstances in this case are sufficient to support a reasonable inference and submit the question of defendant's guilt to the jury. We find much support for our position. See, e.g., State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951), State v. Reynolds, 18 N.C.App. 10, 195 S.E.2d 581 (1973); State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969).
Defendant cites State v. Scott, supra, in support of his position that there was insufficient evidence to withstand his motion. Such case is, however, distinguishable. In State v. Scott, defendant's palm print was found in a room where a family business had been conducted. Although the State's witness in that case testified that she had never seen defendant, she had never been home during regular business hours. The evidence in State v. Scott showed that the defendant could have been in the room for a lawful business purpose. The evidence in *513 the case sub judice, on the other hand, indicates no lawful reason why defendant might have been in the firm's computer room. See State v. Reynolds, supra.
Defendant next contends that the trial court erred by failing to instruct the jury as to the limited circumstances under which the palm print evidence would be sufficient to support a conviction, after defendant had requested such instruction in writing. We agree with defendant and find that the trial court's failure to instruct was prejudicial error.
During a jury conference, defendant requested an instruction to the effect that fingerprints corresponding to those of the accused were without probative force unless the circumstances showed that they could have only been impressed at the time the crime was committed. Defendant's requested instruction concerned a subordinate feature of the case since it did not relate to elements of the crime itself nor to defendant's criminal responsibility therefore. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1976). Absent defendant's request, the jury instructions would have been entirely proper since a Court is not required to give instructions on subordinate features of a case. Id. When a requested instruction, however, is correct in law and supported by the evidence, the Court must give the instruction in substance. State v. Monk, 291 N.C. 37, 229 S.E.2d 163 (1976). The requested instruction in the instant case was a correct application of the law to the evidence.
The State relied primarily on fingerprint evidence to prove defendant's guilt. Defendant was entitled to have the jury instructed on the probative value of such evidence. The failure to so instruct constituted prejudicial error, entitling defendant to a new trial.
We note, finally, that the assistant district attorney initially assigned to prosecute the case was the son of the victim, Mr. Paramore. In light of the possibility of the appearance of a conflicting self-interest in prosecuting defendant, it was proper that the assistant district attorney recused himself. We suggest that someone else represent the State at defendant's new trial.
New trial.
WELLS and JOHNSON, JJ., concur.