Shearouse Adv. Sh. No.
S.E. 2d


In The Supreme Court

The State, Petitioner,


Bennie Darren Mitchell, Respondent.



Appeal From Newberry County

Edward B. Cottingham, Circuit Court Judge

Opinion No. 25166

Heard December 15, 1999 - Filed July 6, 2000


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




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



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.



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).



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


Toal, Moore, Waller and Burnett, JJ., concur.