State v. Raines

224 S.E.2d 232 (1976)

29 N.C. App. 303

STATE of North Carolina v. Al Bobby RAINES et al.

No. 7510SC979.

Court of Appeals of North Carolina.

May 5, 1976.

Certiorari Denied June 17, 1976.

*233 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John M. Silverstein, Raleigh, for the State.

Thomas S. Erwin, Raleigh, for defendant-appellant Willie Guy, Jr.

Manning, Fulton & Skinner by James E. Davis, Jr., Raleigh, for defendant-appellant Bobby Raines.

William A. Smith, Jr., Raleigh, for defendant-appellant Lester Lane.

James A. Everett, Raleigh, for defendant-appellant Earl Whitaker.

Certiorari Denied by Supreme Court June 17, 1976.

ARNOLD, Judge.

Defendants contend that the trial court erred by admitting into evidence the crowbar, owner's manual, warranty, antenna and plastic bag found in the automobile in which defendants were riding when they were arrested. Defendants argue that the relevancy of evidence was "remote and conjectural" and that admission of the objects *234 into evidence invited prejudice. This contention is unfounded.

There was sufficient competent evidence presented at trial to prove that in the early hours of 2 May 1975 the Firestone Store in Raleigh was broken into and that valuable articles were stolen from the store. There was further evidence establishing that the defendants were observed at the scene of the crime during the time when the crime was probably committed. The evidence was properly admitted in that it had a logical tendency to connect the defendants with the perpetration of the crime. State v. Fogleman, 204 N.C. 401, 168 S.E. 536 (1933).

"Tangible traces of various sorts may indicate the presence of a person or the happening of an event of a certain character at a particular place, and evidence of them is therefore admissible if the inference sought to be drawn is a reasonable one. Thus,. . . the finding of weapons, . . . burglar tools, or other paraphernalia used in the commission of the crime, or other clues tending to place the accused at the scene, may be received as tending more or less strongly to connect the accused with the crime." Stansbury's N.C. Evidence, Footprints and other tangible clues, § 85, pp. 263-265.

Defendants contend that the trial judge erred in denying their motion for a jury view. Absent a showing that the trial court abused its discretion in refusing to allow the jury to view the area surrounding the Firestone Store, we cannot say that the trial judge erred in denying the defendants' motion. State v. Payne, 280 N.C. 150, 185 S.E.2d 116 (1971); State v. Ingram, 23 N.C. App. 186, 208 S.E.2d 519 (1974).

Defendants Raines and Guy assign error to the trial court's rulings admitting testimony of S.B.I. agents R. D. Cone and Fred Hurst, Jr. The S.B.I. agents' testimony effectually determined, through an analysis of the paint on the door and the crowbar, and the markings on the door, that the crowbar found in the car in which the defendants were riding when they were arrested was the instrument used to break into the Firestone Store. Defendants argue that tests used in determining whether the crowbar was the instrument used in the break-in are not scientifically reliable. We disagree.

"It seems abundantly clear that, despite occasional technical roadblocks erected by the `rule' against invading the jury's province and by notions about the jury's sublime capacity to draw its own inferences, there can be expert testimony upon practically any facet of human knowledge and experience." Stansbury's N.C. Evidence, Subject Matter of Expert Testimony, § 134, p. 438.

The record establishes that S.B.I. agent Cone is a forensic chemist with a B.S. degree from North Carolina State University, and a M.S. degree from Michigan State University. Mr. Cone had teaching experiences in his field of chemistry at the secondary education and college levels. He has had his works published by the Southern Association of Forensic Scientists and by the Academy of Forensic Scientists.

Agent Hurst is assigned to the firearm and toolmark division of the technical section of the criminal laboratory of the State Bureau of Investigation. He studied firearm and toolmark identification under the chief examiner for the S.B.I., and at the Chicago Police Crime Laboratories. He has conducted numerous comparisons of tools and toolmarks for the S.B.I. since 1971.

The trial court's findings that Agents Cone and Hurst were properly qualified as experts is supported by the evidence, and the trial judge did not err in admitting the witnesses' testimony tending to establish the crowbar as the instrument used in the break-in of the Firestone Store. State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971).

Defendant Raines assigns error to the trial judge's definition of breaking in his instruction to the jury. The trial judge stated that breaking "simply means the opening or removal of anything blocking entry." Defendant Raines notes that the *235 North Carolina Supreme Court disapproved of a similar definition of breaking in State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974). However, Justice Branch, writing for the majority, states that "[a]lthough we do not approve of the language used by the trial judge in this portion of the charge, we do not believe that the jury was misled by this single statement." State v. Henderson, supra, at 22, 203 S.E.2d at 24.

The evidence at trial established that the building was broken into through the use of a crowbar on the door. We do not believe that defendant Raines was prejudiced by the trial court's definition of breaking, and we find no error.

We have reviewed the remaining assignments of error and do not find any error prejudicial to defendants.

No error.

MORRIS and HEDRICK, JJ., concur.