S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
v.
Bennie Darren Mitchell, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Newberry County
Edward B. Cottingham, Circuit Court Judge
Opinion No. 25166
Heard December 15, 1999 - Filed July 6, 2000
AFFIRMED
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott, Assistant
Attorney General G. Robert Deloach, III, all of
Columbia; and Solicitor William Townes Jones, IV, of
Greenwood, for petitioner.
Assistant Appellate Defender Robert M. Pachak, of
Office of Appellate Defense, of Columbia, for
respondent.
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STATE v. MITCHELL
FINNEY, C.J.: This case is before the Court on a writ of
certiorari to review the Court of Appeals' decision in State v. Mitchell, 332
S.C. 619, 506 S.E.2d 523 (Ct. App. 1998). We affirm, finding as did the Court
of Appeals that respondent was entitled to a directed verdict on the burglary
charge.
DISCUSSION
A person is guilty of burglary in the first degree if he enters a
dwelling without consent and with intent to commit a crime in the dwelling,
and at least one of three aggravating factors is proven. S.C. Code Ann. 16-
11-311 (Supp. 1999). Section 16-11-311(A)(2) lists one of the aggravating
factors as burglary committed by a person with a prior record of two or more
convictions for burglary or housebreaking or a combination of both. It was
stipulated at trial that respondent had a prior record of two or more
convictions. The State was therefore required to prove entry into the
dwelling without consent, with the intent to commit a crime.
The evidence relied upon by the State was entirely
circumstantial. There was testimony from Hugh Mathis (victim) that on
September 7, 1995, he came home for lunch and noticed that there were ten
(10) bottles of beer in the refrigerator at noon but that night when he came
home no beer was there. The victim testified that he questioned his children
and determined that they has nothing to do with the disappearing beer. On
September 13, 1995, the victim went into a spare room in his house and
kicked a piece of glass. The victim testified that he pushed the blind back
and noticed a hole in the glass, and that the window was unlocked. The
victim then checked his valuables and noticed that two guns were missing.
Victim reported this to the police.
Victim testified that respondent had been over to his residence
on a couple of occasions. Respondent helped the victim's son unload
furniture. Respondent had also attended a social gathering at the victim's
home which lasted for about forty five (45) minutes to one hour.
A police officer testified that the day after the burglary was
reported, he went to victim's home. He found glass on the spare room's floor
covered by a blanket, and a broom against the wall where it appeared that
someone attempted to sweep the glass up and conceal it beneath the blanket.
p.380
STATE v. MITCHELL
There was no glass on the exterior of the house, but there was a screen that
the officer was able to get an identifiable fingerprint. The fingerprint
matched that of the respondent.
The respondent moved for a directed verdict on the burglary
charge. The trial judge denied the motion and respondent was convicted.
On appeal, the Court of Appear concluded that the State failed to present
substantial circumstantial evidence and therefore respondent was entitled to
a directed verdict. State v. Mitchell, supra.
The State contends that the Court of Appeals applied an
incorrect direct verdict standard. 1 We disagree.
When a motion for a direct verdict is made in a criminal case
where the State relies exclusively on circumstantial evidence, the lower court
is concerned with the existence or nonexistence of evidence, not with its
weight. State v. Edwards, 298 S.C. 272, 379 S.E.2d 888 (1989). The lower
court should not refuse to grant the motion where the evidence merely raises
a suspicion that the accused is guilty. Id. The trial judge is required to
submit the case to the jury if there is "any substantial evidence which
reasonably tends to prove the guilt of the accused, or from which his guilt
may be fairly and logically deduced." Id.; State v. Martin, Op. No. 25096 (S.
C. Sup. Ct. refiled _______) (emphasis added). In reviewing a denial of a
motion for a directed verdict, the appellate court must view the evidence in
the light most favorable to the State. State v. Childs, 299 S.C. 471, 385
S.E.2d 839 (1989).
1 To support this contention, the State relies upon State v. Grippon, 327
S.C. 79, 489 S.E.2d 462 (1997). In Grippon, we discussed circumstantial
evidence jury charges, holding that if a jury is properly charged on
reasonable doubt, then the trial judge may properly charge a jury that there
is no distinction between the weight or value to be given to direct or
circumstantial evidence. Grippon addresses jury charges, not the proper
standard for a judge to use in ruling on directed verdict motions.
Furthermore, a jury weighs evidence but when there is an absence of
evidence, it becomes the duty of the trial judge to direct a verdict. State v.
Schrock, 283 S.C. 129, 322 S.E.2d 450 (1984).
p.381
STATE v. MITCHELL
The evidence in this case is entirely circumstantial. The only
evidence linking respondent to the burglary is the fingerprint. The State did
not present any evidence whether the screen was on the window at the time
the window was broken or when the screen had been removed. The fact that
respondent's fingerprint was on a screen that was propped up against the
house does not prove entry where respondent had been in and around the
victim's house as least three ties prior to the burglary. Compare State v.
Gilliam, 245 S.C. 311, 140 S.E.2d 480 (1965). The decision of the Court of
Appeals holding respondent was entitled to a directed verdict is
AFFIRMED.
Toal, Moore, Waller and Burnett, JJ., concur.
p.382