dissenting.
Believing that defendant’s motion to dismiss should have been granted, I dissent. In my view, the majority passes over critical factual distinctions between this case and State v. Tew. In Tew, the prosecuting witness testified she had never seen the defendant on the premises prior to the day of the burglary, and no other evidence tended to show that defendant had been there before. 234 N.C. at 617-18, 68 S.E.2d at 295; see also State v. Scott, 296 N.C. 519, 525-26, 251 S.E.2d 414, 418 (1979). Here, as the majority notes, evidence suggests that defendant had been to the victimized house on earlier occasions. Even Mr. Nichols admitted that defendant had visited Mr. Nichols’ brother at the house “not more than three times” and that defendant could have been at the sink where the window is located. This evidence is highly significant since the State’s conviction rests largely on the basis of fingerprints found at the crime scene.
To survive a motion for nonsuit, the State must present “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. . . .” State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975) (emphasis added). Disturbingly, the majority in this case concludes that the State presented such evidence by minimizing the importance of defendant’s having been to the house previously and by imposing upon him, instead, the burden of furnishing a “convincing reason” to explain the presence of his fingerprints on the window. Defendant’s failure to satisfy the majority on this point, coupled with his purposeful presence on the porch before the crime, is, to the majority, “substantial evidence” that the fingerprints could have been left at no time other than when the crime occurred. “The burden,” however, “is not upon the defendant to explain the presence of his fingerprint but upon the State to prove his guilt.” Scott, 296 N.C. at 526, 251 S.E.2d at 419. Accord Bass, 303 N.C. at 273, 278 S.E.2d at 213.
In light of the evidence that defendant had been to the house prior to the day of the crime, there is no necessary connection between his presence at the house on that day and the fact that his fingerprints were found on the window. Furthermore, I do not attach the same probative value to defendant’s presence on *204the porch as does the majority. Defendant was not a stranger to Mr. Nichols. Defendant told Mr. Nichols he wished to speak with him, and Mr. Nichols, who did not have time to converse, was content to leave his premises even though defendant was still standing on the porch.
In short, defendant’s presence at the house on the date of the crime was of no concern to the owner, and it is just as reasonable to infer from the evidence that defendant touched the window at some time prior to the day of the burglary. I am not at all satisfied that the State presented “substantial evidence” tending to show when defendant impressed his fingerprints on the window, and accordingly, I dissent.