{ "id": 8523444, "name": "STATE OF NORTH CAROLINA v. ERIC FUTRELL, Defendant", "name_abbreviation": "State v. Futrell", "decision_date": "1993-12-07", "docket_number": "No. 9210SC286", "first_page": "651", "last_page": "672", "citations": [ { "type": "official", "cite": "112 N.C. App. 651" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "405 U.S. 1048", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11779656, 11779720, 11779540, 11779803, 11779582 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/1048-03", "/us/405/1048-04", "/us/405/1048-01", "/us/405/1048-05", "/us/405/1048-02" ] }, { "cite": "333 N.C. 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547377, 2549739, 2545825, 2545950 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0464-03", "/nc/333/0464-01", "/nc/333/0464-02", "/nc/333/0464-04" ] }, { "cite": "301 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "78" } ], "opinion_index": 0 }, { "cite": "308 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710824 ], "year": 1983, "pin_cites": [ { "page": "180-81" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0169-01" ] }, { "cite": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "701", "parenthetical": "second emphasis added" }, { "page": "700-01" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "602", "parenthetical": "second emphasis added" }, { "page": "602" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "398 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2495424, 2499714, 2498482, 2493493, 2500383 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0638-05", "/nc/327/0638-02", "/nc/327/0638-01", "/nc/327/0638-03", "/nc/327/0638-04" ] }, { "cite": "397 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "639" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527189 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "560" }, { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0551-01" ] }, { "cite": "335 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696490, 4687151, 4696345, 4688826, 4686907 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0547-04", "/nc/314/0547-01", "/nc/314/0547-02", "/nc/314/0547-03", "/nc/314/0547-05" ] }, { "cite": "328 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524496 ], "year": 1985, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0326-01" ] }, { "cite": "430 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "422", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "333 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545420 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "705" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0687-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-27.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "118" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "215 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "582" } ], "opinion_index": 0 }, { "cite": "288 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565031 ], "year": 1975, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0113-01" ] }, { "cite": "343 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "890-92" } ], "opinion_index": 0 }, { "cite": "317 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777958 ], "year": 1986, "pin_cites": [ { "page": "95-98" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0087-01" ] }, { "cite": "309 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "512", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523931 ], "year": 1983, "pin_cites": [ { "page": "362", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0359-01" ] }, { "cite": "254 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568074, 8568044, 8568013, 8567990, 8567963 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0179-05", "/nc/297/0179-04", "/nc/297/0179-03", "/nc/297/0179-02", "/nc/297/0179-01" ] }, { "cite": "250 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "325" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 293", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551758 ], "year": 1979, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0293-01" ] }, { "cite": "71 L.Ed.2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "454 U.S. 1150", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6524929, 6524604, 6524386, 6524708, 6525094, 6524519, 6524781, 6524432, 6524658, 6525011, 6524472, 6524860 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/454/1150-10", "/us/454/1150-05", "/us/454/1150-01", "/us/454/1150-07", "/us/454/1150-12", "/us/454/1150-04", "/us/454/1150-08", "/us/454/1150-02", "/us/454/1150-06", "/us/454/1150-11", "/us/454/1150-03", "/us/454/1150-09" ] }, { "cite": "653 F.2d 299", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1465858 ], "year": 1981, "pin_cites": [ { "page": "301", "parenthetical": "introduction of expert testimony based on hearsay may create constitutional problems if there is no adequate opportunity to cross-examine the expert, and if defendant does not have access to the information relied upon by the witness" } ], "opinion_index": 0, "case_paths": [ "/f2d/653/0299-01" ] }, { "cite": "85 L.Ed.2d 169", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1009", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6232119 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1009-01" ] }, { "cite": "31 L.Ed.2d 591", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "31 L.Ed.2d 231", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "405 U.S. 954", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11743493, 11743150, 11743215, 11743283, 11743572, 11743349, 11743095, 11743421, 11743646 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0954-07", "/us/405/0954-02", "/us/405/0954-03", "/us/405/0954-04", "/us/405/0954-08", "/us/405/0954-05", "/us/405/0954-01", "/us/405/0954-06", "/us/405/0954-09" ] }, { "cite": "447 F.2d 1285", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 808328 ], "year": 1971, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/f2d/447/1285-01" ] }, { "cite": "322 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "120-21", "parenthetical": "citing U.S. v. Williams, 447 F.2d 1285 (5th Cir. 1971) (en banc), cert. denied, 405 U.S. 954, 31 L.Ed.2d 231, reh'g denied, 405 U.S. 1048, 31 L.Ed.2d 591 (1972)" } ], "opinion_index": 0 }, { "cite": "312 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4759870 ], "year": 1984, "pin_cites": [ { "page": "108", "parenthetical": "citing U.S. v. Williams, 447 F.2d 1285 (5th Cir. 1971) (en banc), cert. denied, 405 U.S. 954, 31 L.Ed.2d 231, reh'g denied, 405 U.S. 1048, 31 L.Ed.2d 591 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0092-01" ] }, { "cite": "324 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "620-21" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526730 ], "year": 1985, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0348-01" ] }, { "cite": "374 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "418", "parenthetical": "\"[Appellant . . . bears the burden of seeing that the record on appeal is properly settled and filed with this Court.\"" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526975 ], "year": 1988, "pin_cites": [ { "page": "371", "parenthetical": "\"[Appellant . . . bears the burden of seeing that the record on appeal is properly settled and filed with this Court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0370-01" ] }, { "cite": "400 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538085, 2542919, 2544616, 2544302, 2538547 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0273-05", "/nc/328/0273-02", "/nc/328/0273-04", "/nc/328/0273-03", "/nc/328/0273-01" ] }, { "cite": "397 S.E.2d 647", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "649" } ], "opinion_index": 0 }, { "cite": "860 P.2d 435", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 12039667 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/p2d/860/0435-01" ] }, { "cite": "68 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "295" } ], "opinion_index": 0 }, { "cite": "234 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625084 ], "year": 1951, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0612-01" ] }, { "cite": "231 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "839-40", "parenthetical": "citations omitted" }, { "page": "841" }, { "page": "841", "parenthetical": "first emphasis added" } ], "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "488-89", "parenthetical": "citations omitted" }, { "page": "491-92" }, { "page": "491-92" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "237 S.E.2d 537", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562792, 8562762, 8562894, 8562865, 8562777 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0254-03", "/nc/293/0254-01", "/nc/293/0254-05", "/nc/293/0254-04", "/nc/293/0254-02" ] }, { "cite": "236 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "298" }, { "page": "298" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 673", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551987 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "677" }, { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0673-01" ] }, { "cite": "220 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "574", "parenthetical": "emphasis added" }, { "page": "574" } ], "opinion_index": 0 }, { "cite": "289 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566333 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "4", "parenthetical": "emphasis added" }, { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0001-01" ] }, { "cite": "100 N.C. App. 660", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527416 ], "year": 1990, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0660-01" ] }, { "cite": "268 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "457" }, { "page": "457", "parenthetical": "\"[T]he necessary findings are implied from the admission of the challenged evidence.\"" } ], "opinion_index": 0 }, { "cite": "300 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564413 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "685-86" }, { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0678-01" ] }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "year": 1988, "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "358 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "681", "parenthetical": "approving sub silentio expert testimony defendant could not be excluded as child's father, as well as the frequency of defendant's genes in black population, the \"likelihood of paternity,\" and the \"paternity index\"" } ], "opinion_index": 0 }, { "cite": "320 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729285 ], "year": 1987, "pin_cites": [ { "page": "456", "parenthetical": "approving sub silentio expert testimony defendant could not be excluded as child's father, as well as the frequency of defendant's genes in black population, the \"likelihood of paternity,\" and the \"paternity index\"" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0452-01" ] }, { "cite": "322 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "312 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750010 ], "year": 1984, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0129-01" ] }, { "cite": "428 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "424 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "445" }, { "page": "445" }, { "page": "445" }, { "page": "445" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 401", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524442 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "409-410" }, { "page": "410" }, { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0401-01" ] }, { "cite": "301 S.C. 485", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2171209 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "490" }, { "page": "784" } ], "opinion_index": 0, "case_paths": [ "/sc/301/0485-01" ] }, { "cite": "393 S.E.2d 847", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "854" }, { "page": "853" }, { "page": "854", "parenthetical": "emphasis added" }, { "page": "853", "parenthetical": "second alteration in original" }, { "page": "854", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "327 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498438 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "98" }, { "page": "101" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0089-01" ] } ], "analysis": { "cardinality": 1675, "char_count": 49560, "ocr_confidence": 0.767, "pagerank": { "raw": 1.6071278633301824e-07, "percentile": 0.6849322103334982 }, "sha256": "bb0063ba0d50c0097767f7701592235b35ac8118bf427d2af60240da3f4625c3", "simhash": "1:2362b56aa03f0051", "word_count": 8065 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ERIC FUTRELL, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals his conviction and sentence on one count of second degree rape and one count of assault on a female. He asserts the trial court erred by: 1) admitting certain fingerprint and DNA evidence; 2) denying his motion to dismiss at the close of all the evidence; and 3) finding duplicitous aggravating factors. We agree in part and remand the charge of second degree rape for resentencing.\nAt trial, the State\u2019s evidence included the following: During the early morning hours of 16 June 1989, Elizabeth D. (the victim), a nineteen year old student sharing an apartment with two female roommates, was awakened by a kiss on her cheek from a male she did not recognize. She felt what she believed to be a knife at her neck, and was told: \u201c[s]hut up, face the wall or I\u2019ll kill you.\u201d When she turned away from the assailant, he inserted his finger into her vagina and told her to take off her underwear, repeatedly threatening to kill her if she fought with him or failed to comply. After she removed her underwear, the man forced himself between her legs and, still holding the knife in his left hand, had intercourse with her against her will. To stifle her cries, the victim held blankets and a stuffed animal to her face. She estimated the encounter lasted five to ten minutes. Afterwards, the assailant asked if she had any money, but left without taking the $2.00 she offered. The victim looked at her bedside digital clock, which indicated it was 5:43 a.m. She awakened her roommates, telephoned her father, and thereafter contacted the police. An officer drove the victim to the hospital, where a rape kit procedure was performed and a blood sample taken.\nA crime scene specialist processed for fingerprints the living room window of the victim\u2019s apartment as well as a screen which had been removed, the window having been determined to be the attacker\u2019s point of entry. No fingerprints were found on the window glass, but three latent fingerprints were discovered on the screen. Defendant was later fingerprinted, and, upon inquiry at that time, responded there was no reason his fingerprints should be anywhere in or around the victim\u2019s apartment. An expert in fingerprint identification, after comparing the latent fingerprints found on the screen with those of defendant, determined two matched.\nSeveral witnesses placed defendant in close proximity to the victim\u2019s apartment at or about the time of the assault.\nAn expert in forensic serology testified blood samples revealed the victim and defendant each were \u201cABO Type A secretors\u201d in blood classification. A slide of a stain taken from the victim\u2019s panties indicated the presence of spermatozoa.\nSpecial Agent Dwight Adams, Ph.D. (Dr. Adams), assigned to the DNA Analysis Unit of the F.B.I. Laboratory in Washington, D.C., testified as an expert in forensic DNA analysis. He explained in detail the F.B.I. procedure in testing and analyzing DNA samples, as well as quality controls in place at the F.B.I. Laboratory. Using vaginal swabs from the victim, a cutting from her panties, and blood samples from both the victim and defendant, he examined four \u201cautorads,\u201d each representing a different genetic locus. In all four, he concluded DNA from semen found on the victim\u2019s panties matched DNA from defendant\u2019s blood sample. Therefore, defendant could not be eliminated as a possible source of the semen. Dr. Adams then compared DNA from defendant\u2019s blood sample and the semen to the F.B.I.\u2019s black population data base and concluded the probability of finding a random match of the DNA in the semen and in defendant\u2019s blood was approximately 1 in 2.7 million individuals.\nPertinent portions of defendant\u2019s evidence indicated the following: Dr. Moses Schanfield (Dr. Schanfield), an expert in DNA analysis, was critical of the F.B.I. statistical methodology, stating it was hard to derive and justify mathematically. According to Dr. Schanfield, weaknesses in the F.B.I. procedure lead to distortions in results, particularly because of the small size and unknown details of the data base it utilizes. He also explained the principle of Hardy-Weinberg equilibrium and the use of the product rule in calculating the probability of a coincidental match in DNA material.\nOn cross-examination, Dr. Schanfield acknowledged he recalculated the frequency statistics on the matches demonstrated by the four F.B.I. \u201cautorads,\u201d ultimately determining nothing excluded defendant as a possible donor of the semen found on the victim\u2019s underwear. However, his calculation determined the chance of finding another black male in the population with the same four profiles to be 1 in 237,000.\nDr. Ted Emigh (Dr. Emigh), associate faculty member in the Department of Genetics at North Carolina State University, testified as an expert in statistics and population genetics on defendant\u2019s behalf. Based on the statistical theory involved in quantifying the product rule used by the F.B.I. once its laboratory has declared a \u201cmatch\u201d of DNA fragments, the data base used by the F.B.I. in defendant\u2019s case was not, in Dr. Emigh\u2019s opinion, random but rather \u201chaphazard\u201d because the sample size was too small. To calculate accurate probability when an individual is from a particular location, he stated, it is necessary to collect blood samples representative of that community for the data base \u2014as opposed to samples from the \u201cwhole population.\u201d With a 300-person data base, for example, he contended it was impermissible to use the product rule in statistical calculations, and that a sample size of several thousand would be needed for valid computations. He further alleged the F.B.I. had neither demonstrated the lack of substruc-turing nor satisfactorily and scientifically established the existence of Hardy-Weinberg equilibrium in their data base.\nDefendant testified on his own behalf and, in detailing his activities on the morning in question, denied raping the victim and stated he did not touch the living room window or its screen on 16 June 1989. Through his testimony and that of other witnesses, defendant presented evidence tending to show alibi and an earlier occasion on which he might have handled the window screen.\nIn rebuttal by the prosecution, Dr. Bruce Weir (Dr. Weir), professor of statistics and genetics at North Carolina State University, testified as an expert in statistics and population genetics. Having previously done consulting work with the F.B.I. and with access to its data base, he estimated the frequency of defendant\u2019s DNA profile in the U.S. black population to be 1 in 2.8 million. While acknowledging the F.B.I. data base is small, Dr. Weir explained he included in his calculation a statistical mechanism to accommodate that fact. He stated the method by which the F.B.I. gathered and applied its data base to defendant\u2019s case \u201cis certainly accepted by the people who have had opportunity to examine the data.\u201d\nI.\nDefendant first contends the trial court erred by denying his motion to suppress and overruling his objections to fingerprint evidence. He argues the State failed to present substantial evidence of circumstances from which a jury could find defendant\u2019s fingerprints were impressed on the window screen at the time the crime was committed. See State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975) (emphasis added). However, whether fingerprints could have been impressed only at the time of a particular crime is ordinarily a question of fact to be determined by the jury, \u201cnot a question of law to be determined by the court prior to admission of the fingerprint evidence.\u201d State v. Bost, 33 N.C. App. 673, 677, 236 S.E.2d 296, 298, disc. review denied, 293 N.C. 254, 237 S.E.2d 537 (1977). As our Supreme Court stated in State v. Irick:\nThe only limitation this Court has imposed on the admissibility of fingerprint comparisons to prove the identity of the perpetrator of a crime is a requirement that the testimony be given by an expert in fingerprint identification. We have repeatedly said that the testimony of a fingerprint expert is \u201ccompetent as evidence tending to show that defendant was present when the crime was committed and that he at least participated in its commission.\u201d\nThe probative force, not the admissibility, of a correspondence of fingerprints found at the crime scene with those of the accused, depends on whether the fingerprints could have been impressed only at the time the crime was perpetrated. Ordinarily, the question of whether the fingerprints could have been impressed only at the time the crime was committed is a question of fact for the jury. It is not a question of law to be determined by the court prior to the admission of fingerprint evidence.\nState v. Irick, 291 N.C. 480, 488-89, 231 S.E.2d 833, 839-40 (1977) (citations omitted) (quoting State v. Tew, 234 N.C. 612, 617, 68 S.E.2d 291, 295 (1951)).\nTherefore, when a properly qualified fingerprint expert offers evidence prints found at a crime scene are those of the individual charged with the offense, the expert\u2019s testimony is relevant to show the accused was present at the scene on some occasion. Bost, 33 N.C. App. at 676, 236 S.E.2d at 298. However, the probative value of such evidence upon the question of the accused\u2019s guilt \u201cdepends upon the strength of evidence of circumstances from which the jury might find that the fingerprints could have been impressed only at the time the crime was committed.\u201d Id. The question of the \u201csubstantiality\u201d of the fingerprint evidence may be considered later by the court in ruling on a motion to dismiss based upon insufficiency of the evidence. See, e.g., Irick, 291 N.C. at 491-92, 231 S.E.2d at 841 (quoting State v. Miller, 289 N.C. 1, 4, 220 S.E.2d 572, 574 (1975)) (\u201cFingerprint evidence, standing alone, is sufficient to withstand a motion for nonsuit only if there is \u2018substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed.\u2019 \u201d); see also discussion infra part III.\nExamining the record in view of the foregoing principles, we observe the crime scene expert testified he processed the window screen and found three latent prints. These were compared with those of defendant by the fingerprint identification expert who determined two matched. There was no error by the trial court in permitting the fingerprint evidence, and this assignment of error is without merit.\nII.\nDefendant next maintains the trial court erred by admitting evidence of DNA profile testing. Specifically, defendant contends the DNA evidence should have been excluded because (A) the methodology used by the F.B.I. in determining a statistical compilation of the frequency of a matching DNA \u201cprint\u201d was insufficiently reliable for the results derived therefrom to be admissible, and (B) defendant was denied his constitutional rights to effective confrontation of witnesses by inability to cross-examine the individual who actually conducted and directly observed the F.B.I.\u2019s DNA testing. For the reasons which follow, we are not persuaded by defendant\u2019s arguments.\nA.\nPreliminarily, it is necessary briefly to review the process of DNA analysis. In simplistic terms, long double-stranded molecules called DNA are found in the chromosomes carried within the nuclei of all cells; DNA molecules contain each individual\u2019s genetic code and carry his or her hereditary patterns. The methodology of DNA testing is complex and the terminology difficult. See generally Springfield v. State, 860 P.2d 435 (Wyo. 1993); Jonathan J. Koehler, DNA Matches and Statistics: important questions, surprising answers, 76 Judicature 222, 222-29 (1993). However, the analytical procedure or \u201cprotocol\u201d at issue in the case sub judice (known as restriction fragment length polymorphism or \u201cRFLP\u201d) essentially involves taking DNA samples from blood or semen found on a victim or at the crime scene and comparing the DNA in those samples with DNA taken from the nuclei of a suspected perpetrator\u2019s blood cells.\nFirst, the \u201cknown\u201d and \u201cunknown\u201d\" samples of DNA molecules are chemically cut into fragments, separated into single strands, and lined up longest to shortest. A \u201cprobing step\u201d follows to isolate those portions of DNA molecules which are \u201cvariable,\u201d that is, differ from one individual to another. Four specific areas of the DNA molecule are usually \u201cprobed\u201d in the RFLP procedure. Then a process called autoradiography yields an exposed film called an \u201cautorad\u201d showing a pattern of fuzzy lines or bands, commonly referred to as a \u201cDNA profile.\u201d\nBands derived from the known and unknown samples are thereafter compared visually. If the numbers and positions of the bands on the autorad appear consistent with one another (i.e. \u2014 \u201cline up\u201d), they are then sized by computerized measurement with reference to \u201csize markers\u201d or \u201csizing ladders\u201d which also appear on autorads in three parallel lanes. After visual examination and computerized measurement, an \u201cinterpretation\u201d is made as to whether, within a specified deviation or \u201cmatch window,\u201d a \u201cmatch\u201d may be declared. Under the F.B.I. protocol, a margin of error of plus or minus 2.5% is permitted.\nFinally, the statistical significance of the \u201cmatch,\u201d that is, the probability of finding identical strands of DNA in someone other than the accused, is determined. This is accomplished by ascertaining the frequency with which a particular pattern of bands will appear within a relevant population, this latter being initially established by the race of the individual involved and by references to the pertinent data base compiled by the testing agency. Defendant strenuously argues the F.B.I.\u2019s procedures involved in this final step of statistical interpretation were not \u201csufficiently reliable.\u201d As a consequence, defendant insists, he was \u201cunfairly prejudiced\u201d by admission into evidence of the resulting calculations. Moreover, by his contention \u201c[t]he mere fact of a match [between DNA from defendant and from the semen found on the victim\u2019s panties] is without meaning unless you also know the rarity of the matching pattern[,]\u201d defendant implies evidence of the match was irrelevant.\nBy thus asserting lack of relevance and prejudice, defendant tracks language from the decision of our Supreme Court in State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990). In ruling evidence of DNA profile testing \u201cgenerally admissible,\u201d id. at 101, 393 S.E.2d at 854, the court focused on several \u201cindices of reliability,\u201d such as \u201cthe expert\u2019s use of established techniques, the expert\u2019s professional background in the field, the use of visual aids before the jury . . . and independent research conducted by the expert.\u201d Id. at 98, 393 S.E.2d at 853. However, the court stated DNA test results should not always be admitted into evidence:\nThe admissibility of any such evidence remains subject to attack. Issues pertaining to relevancy or prejudice may be raised. For example, expert testimony may be presented to impeach the particular procedures used in a specific test or the reliability of the results obtained. In addition, traditional challenges to the admissibility of evidence such as the contamination of the sample or chain of custody questions may be presented. These issues relate to the weight of the evidence. The evidence may be found to be so tainted that it is totally unreliable and, therefore, must be excluded.\nId. at 101, 393 S.E.2d at 854 (emphasis added) (citation omitted) (quoting State v. Ford, 301 S.C. 485, 490, 392 S.E.2d 781, 784 (1990)).\nThis Court has recently amplified the above-quoted language from Pennington:\n[Wjhere unfair prejudice is not clear and where there is merely conflicting expert testimony regarding interpretation of the DNA evidence or where two experts have reached differing results based on independent analyses of the DNA, the issue becomes one of credibility of the experts. In that situation the jury is obligated to determine what weight each expert\u2019s testimony should receive.\nState v. Bruno, 108 N.C. App. 401, 409-410, 424 S.E.2d 440, 445, disc. review denied, appeal dismissed, 333 N.C. 464, 428 S.E.2d 185 (1993).\nTo support his contention of prejudice, defendant, relying primarily on expert testimony given below, outlines in his brief the three-step process followed by the F.B.I. in determining the frequency of occurrence of DNA prints matching his own:\nFirst, the lab must have reliable information about the frequency of each allele (band) on the autorad (prints). This is done by looking at a data base consisting of the DNA prints of a number of individuals and determining the percentage of bands that fall within the same \u201cbin\u201d as the band in question. For example, if three percent of the bands in the database fall within the same bin as the band in question, the band is assigned a frequency of .03 or 3 percent.\nThe second part is to determine the frequency of genotypes. A genotype is the pair of bands produced by a given probe. One band is inherited from the mother and one from the father. To determine the frequency of heterozygous (two band) genotypes, the F.B.I. uses the formula 2pq where p and q are the frequencies of the two alleles (bands) in the genotype. If the frequency of band A is .03 and the frequency of band B is .05, the F.B.I. lab multiplies .03 x .05 x 2. This makes the genotype AB frequency .003 (3 in 1000).\nThe final step is to determine the frequency of the entire DNA print (all bands in combination). The product rule is used. The product rule specifies the joint probability of several events in cases where the events are statistically independent. If four probes were used, step two would have produced four genotype frequencies. These frequencies are then multiplied together to obtain the frequency of the entire DNA print.\nDefendant then argues the foregoing procedure assumes bands in DNA \u201cprints\u201d comprising the F.B.I. data base are statistically independent of each other and that each provides independent information. He disputes the validity of these assumptions because:\n[TJhere are only limited samples, a limited database, from which the F.B.I. can estimate the population frequencies of the various DNA sequences.\nThe database used by the F.B.I. for a black population in the present case consisted of only 500 individuals. The F.B.I.\u2019s assumptions fail to take into consideration population substructure or that traits have different frequencies in different population subgroups. In fact, the F.B.I. has no way of knowing anything about what the subgroups are or even if all contributors to their black population database are black persons, genetically speaking.\nSuch a subgroup would be a community of \u201cblack persons who live in a relatively isolated, rural community. There may be an extraordinary degree or [sic] intermarriage or inbreeding within these subpopulations. If mating is not random, the sub-population may not be in so-called Hardy-Weinberg equilibrium, and the frequencies within the subpopulation may deviate from the frequencies obtaining in the broader group.\u201d (Quoting Giannelli & Imwinkelreid, Scientific Evidence 129 (1991 Supp.)).\nThe Hardy-Weinberg equilibrium is a principle used in population genetics that asserts that so long as certain criteria are met, the frequencies of the alleles (bands, genes) are going to remain constant from generation to generation.\nIn sum, defendant contends the F.B.I.\u2019s data base is too small to permit use of the product rule and fails to take population substructure into consideration. Additionally, defendant suggests the record in this case is without evidence of specific testing performed by or for the F.B.I., or the results therefrom, to determine if its black population data base is in Hardy-Weinberg equilibrium.\nAt defendant\u2019s trial, the State\u2019s witnesses Dr. Adams and Dr. Weir, and defendant\u2019s witnesses Dr. Schanfield and Dr. Emigh, were declared experts in their respective fields. Each explained various aspects of the DNA testing process and how they reached their individual opinions. Furthermore, the experts used visual aids to assist the jury, \u201cso that the jury [was] not asked \u2018to sacrifice its independence by accepting [the] scientific hypotheses on faith.\u2019 \u201d Pennington, 327 N.C. at 98, 393 S.E.2d at 853 (second alteration in original) (quoting State v. Bullard, 312 N.C. 129, 151, 322 S.E.2d 370, 382 (1984)).\nContrary to defendant\u2019s evidence and his assertions regarding the inherent unreliability of the F.B.I.\u2019s statistical DNA methodology, is evidence from Dr. Weir. Testifying as an expert in statistics and population genetics, he explained a statistical mechanism is employed to accommodate the F.B.I. data base size restriction, and that population substructure concerns (\u201cdefendant\u2019s ethnic background, where he lived\u201d) are irrelevant since the F.B.I.\u2019s frequency calculations are done under the assumption the particular defendant did not donate the DNA material in question. In addition, he testified the product rule is appropriate for the data base of black individuals maintained by the F.B.I. When asked if \u201cft]he method by which the F.B.I. gathered their data base and applied the data base to this case\u201d is \u201cgenerally accepted in the population genetics community,\u201d Dr. Weir responded, \u201c[i]t is certainly accepted by the people who have had opportunity to examine the data.\u201d Also, Dr. Weir\u2019s own calculations were made using the F.B.I.\u2019s data bases. Finally, the record affirmatively reflects testimony by Dr. Adams that two individuals, including Dr. Weir, have examined the FJB.I.\u2019s data base and have \u201cshown that [the] data are in Hardy-Weinberg equilibrium for the different probes\u201d used by the F.B.I.\nWhile the expert testimony presented at defendant\u2019s trial was \u201cconflicting,\u201d Bruno, 108 N.C. App. at 410, 424 S.E.2d at 445, in that defendant offered evidence \u201cto impeach the particular procedures used in a specific test [and] the reliability of the results obtained,\u201d Pennington, 327 N.C. at 101, 393 S.E.2d at 854 (citation omitted), the resultant crucial issue was one of \u201ccredibility of the experts\u201d and it was for the jury \u201cto determine what weight each expert\u2019s testimony\u201d should have received. Bruno, 108 N.C. App. at 410, 424 S.E.2d at 445. Mere \u201cconflicting expert testimony\u201d regarding F.B.I. statistical procedures neither suggests prejudice so \u201cunfair,\u201d nor shows those procedures were so \u201ctotally unreliable,\u201d as to require exclusion from evidence of the resulting compilations. Id. at 409-10, 424 S.E.2d at 445. Dr. Adams testified the likelihood of a person\u2019s having defendant\u2019s DNA profile was 1 in 2.7 million, Dr. Schanfield that it was 1 in 237,000, and Dr. Weir stated the figure as 1 in 2.8 million.\nThe trial court properly instructed the members of the jury they were the \u201csole judges\u201d of the credibility of each witness and of the weight to be given the testimony of each witness, that they might \u201cbelieve all or any part or none\u201d of the testimony of each witness, and that they were not \u201cto accept an expert witness\u2019s opinion to the exclusion of the facts and circumstances disclosed by other testimony.\u201d It was for the jury, therefore, to determine the credibility and weight to give each opinion, and defendant was not, as he insists, \u201cunfairly prejudiced\u201d by the admission of DNA testing results. See also State v. Jackson, 320 N.C. 452, 456, 358 S.E.2d 679, 681 (1987) (approving sub silentio expert testimony defendant could not be excluded as child\u2019s father, as well as the frequency of defendant\u2019s genes in black population, the \u201clikelihood of paternity,\u201d and the \u201cpaternity index\u201d). Because defendant\u2019s contentions of \u201cunfair prejudice\u201d from the admission of statistical probabilities of a \u201cmatch\u201d in DNA samples are thus unfounded, his derivative argument regarding irrelevance of \u201cmatch\u201d evidence must also fail.\nIn considering defendant\u2019s assertion of prejudice, we also note the procedural context in which he argues unreliability of the DNA evidence presented by the State. At trial, upon motions by defendant in limine for a pretrial hearing on DNA evidence and to suppress DNA evidence, the court conducted a voir dire hearing at which only Dr. Adams of the F.B.I. testified. While defendant filed a brief with the trial court, (not included in the record, see N.C.R. App. P. 9(a)(3)(i); 28(a)), he offered no evidence at the hearing and specifically no testimony from either of his expert witnesses. In arguing the motions, defendant\u2019s trial counsel advised he had decided to \u201creserve ... to the jury\u201d the issue of reliability of the FJB.I.\u2019s DNA testing, nonetheless asserting the evidence was inadmissible upon other grounds. See infra \u00a7 B. The court thereafter denied defendant\u2019s motions.\nHaving abandoned at trial his argument the FJBJ.\u2019s DNA testing was unreliable, and having failed to put forth expert testimony on the issue at the voir dire hearing concerning the admissibility of the evidence, defendant may not now assign as error the trial court\u2019s decision to allow the evidence to be presented. \u201c[A] defendant is not prejudiced ... by error resulting from his own conduct.\u201d N.C. Gen. Stat. \u00a7 15A-1443(c) (1988). Moreover, there is a presumption the court\u2019s evidentiary rulings are proper; defendant bears the burden of demonstrating a particular ruling was in fact incorrect. State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988). Defendant has failed to meet this burden.\nDefendant also complains the trial court, despite his request, failed to make findings of fact in denying the motion to suppress DNA evidence. The court agreed, with counsel\u2019s consent, to place appropriate findings in the record at a later time, but apparently failed to do so. However, where evidence is uncontroverted and the facts not in dispute, a trial court is not required to make findings of fact, even when provided for by statute or case law. State v. Phillips, 300 N.C. 678, 685-86, 268 S.E.2d 452, 457 (1980); State v. Norman, 100 N.C. App. 660, 663, 397 S.E.2d 647, 649 (1990), disc. review denied, appeal dismissed, 328 N.C. 273, 400 S.E.2d 459 (1991). As defendant presented no evidence at the voir dire hearing and Dr. Adams\u2019 testimony did not support defendant\u2019s contention regarding the unreliability of F.B.I. methodology, there was no factual dispute. Therefore, no findings were required to support the court\u2019s denial of defendant\u2019s motions. Phillips, 300 N.C. at 685, 268 S.E.2d at 457 (\u201c[T]he necessary findings are implied from the admission of the challenged evidence.\u201d)\nIn addition, it bears mention the court at the conclusion of the trial indicated to counsel \u201c[i]f there are matters that need my attention ... at a later date, you can rest assured I\u2019ll cooperate,\u201d advising them the judge\u2019s home telephone number would be left with the court clerk. Defendant\u2019s counsel thus had an opportunity to reiterate his request for findings. We further note since defendant prepared the proposed record on appeal, he bore the initial responsibility regarding its content, and could have sought to have the findings included therein. See McLeod v. Faust, 92 N.C. App. 370, 371, 374 S.E.2d 417, 418 (1988) (\u201c[Appellant . . . bears the burden of seeing that the record on appeal is properly settled and filed with this Court.\u201d); see also N.C.R. App. P. 11(b).\nB.\nDefendant additionally contends his Sixth Amendment right to confront witnesses against him was violated by admission into evidence of DNA profile test results, since the lab technician who actually performed the tests did not testify at trial. Although Dr. Adams did not personally carry out or oversee each test procedure, he was permitted to present the results to the jury. However, he did supervise and \u201cmonitor\u201d the technician who conducted the tests, and she made notes and took photographs at each stage of the technical process for his review.\nRegarding the foundation for a testifying expert\u2019s opinion, Rule 703 of North Carolina\u2019s Evidence Code provides as follows:\nThe facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 703 (1992). An expert need not base his opinion upon personal knowledge \u201cas long as the basis for his or her opinion is available in the record or available upon demand.\u201d Thompson v. Lenoir Transfer Co., 72 N.C. App. 348, 350, 324 S.E.2d 619, 620-21 (1985).\nOur courts have held admission of expert opinion based on hearsay evidence not in itself admissible does not violate the Sixth Amendment guarantee of an accused\u2019s right to confront his accusers so long as the expert is available for cross-examination. State v. Huffstetler, 312 N.C. 92, 108, 322 S.E.2d 110, 120-21 (1984) (citing U.S. v. Williams, 447 F.2d 1285 (5th Cir. 1971) (en banc), cert. denied, 405 U.S. 954, 31 L.Ed.2d 231, reh\u2019g denied, 405 U.S. 1048, 31 L.Ed.2d 591 (1972)), cert. denied, 471 U.S. 1009, 85 L.Ed.2d 169 (1985); Cf. U.S. v. Lawson, 653 F.2d 299, 301 (7th Cir. 1981) (introduction of expert testimony based on hearsay may create constitutional problems if there is no adequate opportunity to cross-examine the expert, and if defendant does not have access to the information relied upon by the witness), cert. denied, 454 U.S. 1150, 71 L.Ed.2d 305 (1982).\nIn the case sub judice, Dr. Adams supervised the testing procedure upon which his opinions were based. He was present for cross-examination and was questioned vigorously and thoroughly. In addition, the record reflects the technician\u2019s notes and photographs were available to defendant\u2019s counsel, and that defendant at no time attempted to subpoena the laboratory technician nor sought the assistance of the court in securing her presence for trial. Indeed, in arguing the DNA test results should be suppressed because of the technician\u2019s absence, defendant\u2019s counsel conceded, \u201c[y]es, we can subpoena her and get her here. It would be difficult, because she\u2019s an out-of-state witness, but we can do that.\u201d Thus, defendant\u2019s constitutional arguments regarding the testimony of Dr. Adams are unavailing.\nBased on sections A. and B. above, therefore, we hold the trial court committed no prejudicial error in denying defendant\u2019s motions to exclude evidence of DNA profile testing.\nIII.\nDefendant next assigns error to the court\u2019s denial of his motion, \u201cmade at the close of all the evidence,\u201d to dismiss the charges against him because of insufficiency of the evidence.\nIn support of this contention, defendant offers three arguments. First, defendant reiterates his belief that evidence of DNA profiling was insufficiently reliable and should have been excluded. We have rejected this assertion in part II above.\nDefendant then once more claims the state failed to make a showing his fingerprints could only have been impressed on the victim\u2019s window frame at the time of the offense. As earlier noted, defendant\u2019s argument regarding fingerprint evidence is misplaced. \u201cFingerprint evidence, standing alone, is sufficient to withstand a motion [to dismiss] only if there is \u2018substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed.\u2019 \u201d Irick, 291 N.C. at 491-92, 231 S.E.2d at 841 (first emphasis added); see also State v. Rudolph, 39 N.C. App. 293, 303, 250 S.E.2d 318, 325, disc. rev. denied, appeal dismissed, 297 N.C. 179, 254 S.E.2d 40 (1979). Where the State seeks to prove defendant\u2019s guilt primarily through the use of fingerprint evidence, moreover, a motion to dismiss \u201cis 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.\u201d State v. Bradley, 65 N.C. App. 359, 362, 309 S.E.2d 510, 512 (1983) (citations omitted).\nSuffice it to observe the fingerprint evidence at defendant\u2019s trial did not \u201cstand alone,\u201d nor was it necessarily the \u201cprimary\u201d component of the State\u2019s case. Plenary evidence, including fingerprint and DNA evidence as well as placement of defendant near the victim\u2019s apartment at the time of the crime by numerous witnesses, linked him with the offenses charged. See, e.g., State v. Mercer, 317 N.C. 87, 95-98, 343 S.E.2d 885, 890-92 (1986). There was \u201csubstantial evidence ... to support a finding that the offense[s] charged [second degree rape and assault on a female] [had] been committed and that defendant committed [them],\u201d State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975). Although evidence susceptible to an inference defendant\u2019s prints might have been left on the screen at an earlier time was introduced, the court is not required to exclude \u201cevery reasonable hypothesis of innocence\u201d prior to denying a motion to dismiss. State v. Powell, 299 N.C. 95, 101, 261 S.E.2d 114, 118 (1980).\nFinally, defendant correctly points out the victim was unable to identify him as her assailant, and descriptions she gave to investigating officers were inconsistent with other evidence of defendant\u2019s appearance at the time of the assault. However, \u201ccontradictions and discrepancies do not warrant dismissal of the case\u2014 they are for the jury to resolve.\u201d State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). The victim\u2019s admitted inability to detail her assailant\u2019s physical characteristics with accuracy or certainty is a circumstance for the jury to consider when evaluating her testimony.\nWe also note again the procedural context in which this particular assignment of error is presented. In his brief, defendant cites to a point in the record where most of the evidence had been presented, where the court and counsel were discussing the court\u2019s charge to the jury, and where defendant\u2019s counsel indeed made a motion to dismiss which was subsequently denied. However, the defense thereafter presented a character witness to testify on defendant\u2019s behalf, thereby \u201creopen[ing] its case.\u201d Dr. Weir also testified at some length as a rebuttal witness for the State at this time. The record reflects defendant made no motion to dismiss at the true close of all the evidence. N.C.R. App. P. 10(b)(3) is controlling herein:\nA defendant may make a motion to dismiss the action or judgment as in case of nonsuit at the conclusion of all the evidence, irrespective of whether he made an earlier such motion. . . . However, if a defendant fails to move to dismiss the action or for judgment as in case of nonsuit at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.\n(Emphasis added).\nBased on the foregoing, we find this assignment of error unpersuasive.\nIV.\nFinally, we examine defendant\u2019s contention the trial court erred to his prejudice by finding \u201cduplicitous\u201d factors in aggravation of his sentence, thereafter sentencing him to thirty years\u2019 imprisonment for second degree rape \u2014 a term beyond the statutory presumptive sentence of twelve years. See N.C. Gen. Stat. \u00a7\u00a7 14-27.3 (1986); 14-1.1 (1986); 15A-1340.4(f)(2) (Cum. Supp. 1992). Defendant\u2019s argument comports with a recent holding of our Supreme Court, and accordingly we remand the charge of second degree rape for resentencing. State v. Kyle, 333 N.C. 687, 430 S.E.2d 412 (1993).\nAmong the enumerated factors under North Carolina\u2019s Fair Sentencing Act (N.C. Gen. Stat. \u00a7\u00a7 15A-1340.1-1340.7 (1988 and Cum. Supp. 1992)) which may be used by a trial court to \u201caggravate\u201d or increase a defendant\u2019s sentence beyond the statutory \u201cpresumptive\u201d term is the following: \u201c[t]he defendant was armed with or used a deadly weapon at the time of the crime.\u201d \u00a7 15A-1340.4(a)(l)(i). However, \u00a7 15A-1340.4(a) mandates \u201cthe same item of evidence may not be used to prove more than one factor in aggravation.\u201d While the sentencing form used by the court in the case sub judice was modelled closely after the statute, it varies in minor detail. Pertinently, \u00a7 15A-1340(a)(l)(i) is divided on the form into two possible aggravating factors, designated as 9.a. and 9.b. The trial court placed an \u201cX\u201d beside each of these on the sentencing form, indicating it found as aggravating factors both that \u201cdefendant was armed with a deadly weapon at the time of the crime,\u201d (designated 9.a.) and that \u201cdefendant used a deadly weapon at the time of the crime\u201d (9.b.). The court also specifically found two factors in mitigation of defendant\u2019s sentence: \u201cdefendant has no record of criminal convictions,\u201d and \u201cdefendant has been a person of good character or has had a good reputation in the community in which he lives.\u201d\nDefendant argues the trial judge erroneously used \u201cthe same item of evidence [i.e. \u2014 his possession of a knife] ... to prove more than one factor in aggravation\u201d of his sentence in violation of \u00a7 15A-1340.4(a). He insists in order to use a deadly weapon (the aggravating factor set forth in 9.b.), an individual must necessarily also be armed with it at the time of the crime (the aggravating factor set forth in 9.a.). Defendant further asserts the notations on the sentencing form reflect the court\u2019s perception the same item of evidence supported findings of two separate aggravating factors, and that misconception in turn could have affected the manner in which the court thereafter balanced the factors, resulting in the erroneous and prejudicial determination those in aggravation outweighed those in mitigation.\nDefendant\u2019s position finds support in State v. Kyle:\n[T]his statute [\u00a7 1340.4(a)(l)(i)] was intended to encompass two kinds of conduct: (1) the actual use of a deadly weapon in the commission of a crime, and (2) merely having a weapon in one\u2019s possession at the time of the crime. The fact that both of these factors in aggravation are listed on the appropriate sentencing form merely affords a sentencing court with a mechanism for aggravating a crime where a defendant merely arms himself with a deadly weapon at the time of the crime but does not actually use it in the commission of the offense. In this case, the evidence shows that defendant used a deadly weapon in the commission of the crimes of burglary and kidnapping. Defendant could not use a deadly weapon in the commis sion of the offenses without also being armed with a deadly weapon at the time of the crimes. We conclude that the trial court improperly found these two factors in aggravation based upon the same evidence. We therefore conclude that defendant is entitled to a new sentencing hearing on Ms convictions for burglary and kidnapping.\nKyle, 333 N.C. at 705, 430 S.E.2d at 422 (emphasis added) (citation omitted).\nIn defendant\u2019s case, evidence he possessed a knife at the victim\u2019s apartment was used to support the court\u2019s findings both that defendant was armed (9.a.) and that he used a deadly weapon in perpetrating his attack on the victim (9.b.). The victim testified defendant was armed when he first made contact with her; she \u201cimmediately . . . felt a cold substance on [her] neck,\u201d and he subsequently threatened to kill her if she did not comply with his demands. In addition, she testified he used the knife during the commission of the rape: he forced her legs open, and \u201che [was] holding what I [felt] to be a knife with his left hand . . . .\u201d Thus defendant used a knife in the commission of second degree rape from his initial entry into the victim\u2019s room until his departure. Under Kyle, defendant\u2019s use of a deadly weapon presupposes he was armed with it at the time. Therefore, the court erroneously used the same evidence to prove two distinct factors in enhancing defendant\u2019s sentence.\n\u201c[W]here an aggravating factor was incorrect, the trial judge could not have properly balanced the aggravating and mitigating factors . . . .\u201d State v. Taylor, 74 N.C. App. 326, 328, 328 S.E.2d 27, 29, disc. review denied, 314 N.C. 547, 335 S.E.2d 319 (1985); see also State v. Davy, 100 N.C. App. 551, 560, 397 S.E.2d 634, 639, disc. review denied, appeal dismissed, 327 N.C. 638, 398 S.E.2d 871 (1990). Accordingly, the case must be remanded for resentenc-ing. Davy, 100 N.C. App. at 560, 397 S.E.2d at 639. As our Supreme Court has stated:\n[I]t must be assumed that every factor in aggravation measured against every factor in mitigation, with concomitant weight attached to each, contributes to the severity of the sentence \u2014 the quantitative variation from the norm of the presumptive term. It is only the sentencing judge who is in a position to re-evaluate the severity of the sentence imposed in light of the adjustment. For these reasons, we hold that in every case in which it is found that the judge erred in a finding or findings in aggravation and imposed a sentence beyond the presumptive term, the case must be remanded for a new sentencing hearing.\nState v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701 (1983) (second emphasis added); see also State v. Chatman, 308 N.C. 169, 180-81, 301 S.E.2d 71, 78 (1983).\nWhile this may well be one of the \u201cmany cases where, on remand, the trial judge will properly reach the same result absent the erroneous finding,\u201d Ahearn, 307 N.C. at 602, 300 S.E.2d at 700-01, defendant is entitled to understand the basis for the court\u2019s decision to sentence him to a term beyond that presumptively imposed by law.\nHaving thus fully examined each of defendant\u2019s assignments of error, we find no prejudicial error in the guilt phase of his trial. However, for the reasons discussed hereinabove, we remand for resentencing the charge of second degree rape.\n89 CRS 39361, Counts I & II \u2014 No error in the trial.\n89 CRS 39361, Count I \u2014 Remand for resentencing.\nJudges EAGLES and MARTIN concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Valerie B. Spalding, for the State.", "John T. Hall for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC FUTRELL, Defendant\nNo. 9210SC286\n(Filed 7 December 1993)\n1. Evidence and Witnesses \u00a7 1874 (NCI4th) \u2014 rape \u2014 fingerprints on window screen \u2014time of impression \u2014no evidence that time of crime exclusive \u2014 admissible\nThe trial court did not err in a prosecution for second-degree rape and assault on a female by admitting evidence that a crime scene specialist processed a window screen at the scene of the crime and found three latent prints and that these were compared with those of defendant by a fingerprint identification expert who determined that two matched. Although defendant contended that the State failed to present substantial evidence of circumstances from which a jury could find that defendant\u2019s fingerprints were impressed on the window screen at the time the crime was committed, whether fingerprints could have been impressed only at the time of a particular crime is ordinarily a question of fact to be determined by the jury, not a question of law to be determined by the court prior to admission of the fingerprint evidence. When a properly qualified fingerprint expert offers evidence that prints found at a crime scene are those of the individual charged with the offense, the expert\u2019s testimony is relevant to show the accused was present at.the scene on some occasion.\nAm Jur 2d, Evidence \u00a7 375.\n2. Evidence and Witnesses \u00a7 2211 (NCI4th)\u2014 rape \u2014 DNA analysis \u2014matching sample \u2014 conflicting expert testimony \u2014 State\u2019s evidence admissible\nThe trial court did not err in a prosecution for second-degree rape and assault on a female by admitting evidence of DNA profile testing. While the expert testimony presented at defendant\u2019s trial was conflicting in that defendant offered evidence to impeach the particular procedures used in a specific test and the reliability of the results obtained, the resultant crucial issue was one of credibility of the experts and it was for the jury to determine what weight each expert\u2019s testimony should have received. The trial court properly instructed the members of the jury that they were the sole judges of the credibility of each witness and of the weight to be given the testimony of each witness, that they might believe all or any part or none of the testimony of each witness, and that they were not to accept an expert witness\u2019s opinion to the exclusion of the facts and circumstances disclosed by other testimony.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 300.\n3. Appeal and Error \u00a7 147 (NCI4th)\u2014 rape \u2014DNA testing \u2014 issue not preserved for appeal\nA defendant could not assign as error the introduction of DNA evidence in a rape trial where, upon motions by defendant in limine for a pretrial hearing on DNA evidence and to suppress DNA evidence, the court conducted a voir dire hearing at which only Dr. Adams of the F.B.I. testified, defendant offered no evidence at the hearing and specifically no testimony from either of his expert witnesses, and, in arguing the motions, defendant\u2019s trial counsel advised he had decided to \u201creserve ... to the jury\u201d the issue of reliability of the FJB.I.\u2019s DNA testing while asserting that the evidence was inadmissible upon other grounds. Moreover, there is a presumption that the court\u2019s evidentiary rulings are proper; defendant bears the burden of demonstrating that a particular ruling was incorrect and failed to meet this burden.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 545 et seq.\n4. Evidence and Witnesses \u00a7 650 (NCI4th) \u2014 rape \u2014 DNA testing-motion to suppress denied \u2014findings not made \u2014not required\nFindings of fact were not required to support the trial court\u2019s denial of defendant\u2019s motions to suppress DNA evidence in a rape trial where defendant presented no evidence at the voir dire hearing and the testimony of the State\u2019s witness did not support defendant\u2019s contention regarding the unreliability of F.B.I. methodology. Where evidence is uncontroverted and the facts not in dispute, a trial court is not required to make findings of fact, even when provided for by statute or case law. Additionally, the court indicated to counsel at the end of the trial that he would cooperate if there were matters needing attention at a later date, leaving his home telephone number with the court clerk, so that defendant\u2019s counsel had an opportunity to reiterate his request for findings. Finally, defendant prepared the record for appeal and could have sought to have the findings included therein.\nAm Jur 2d, Motions, Orders and Rules \u00a7 26.\n5. Constitutional Law \u00a7 349 (NCI4th); Evidence and Witnesses \u00a7 2170 (NCI4th)\u2014 rape \u2014DNA testing \u2014 results not presented by technician performing tests \u2014admissible\nA rape and assault defendant\u2019s Sixth Amendment right to confront witnesses against him was not violated by the admission into evidence of DNA profile test results where the lab technician who actually performed the tests did not testify at trial. The expert witness who presented the results supervised the testing procedure upon which his opinions were based, was present for cross-examination and was questioned vigorously and thoroughly, the record reflects that the technician\u2019s notes and photographs were available to defendant\u2019s counsel, and defendant at no time attempted to subpoena the laboratory technician nor sought the assistance of the court in securing her presence for trial. An expert need not base his opinion upon personal knowledge as long as the basis for his or her opinion is available in the record or available upon demand. N.C.G.S. \u00a7 8C-1, Rule 703.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 75 et seq.\n6. Rape and Allied Sexual Offenses \u00a7 98 (NCI4th)\u2014 second-degree rape and assault on a female \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss charges of second-degree rape and assault on a female based on insufficient evidence where the State\u2019s DNA evidence was admissible; while defendant claims the State failed to make a showing that his fingerprints could only have been impressed on the victim\u2019s window frame at the time of the offense, defendant\u2019s argument is misplaced because the fingerprint evidence at defendant\u2019s trial did not stand alone, nor was it necessarily the primary component of the State\u2019s case; and the victim\u2019s admitted inability to detail her assailant\u2019s physical characteristics with accuracy or certainty is a circumstance for the jury to consider when evaluating her testimony. Moreover, defendant introduced evidence after making the motion to dismiss and did not make a motion to dismiss at the true close of all the evidence. N.C.R. App. P. 10(b)(3).\nAm Jur 2d, Rape \u00a7\u00a7 88 et seq.\n7. Criminal Law \u00a7 1158 (NCI4th)\u2014 rape \u2014sentencing\u2014aggravating factors \u2014use of deadly weapon \u2014armed with deadly weapon \u2014 improper\nThe trial court erred when sentencing defendant for second-degree rape by finding in aggravation that defendant was armed with a deadly weapon at the time of the crime and that defendant used a deadly weapon where both findings were supported by evidence that defendant possessed a knife at the victim\u2019s apartment. Defendant\u2019s use of a deadly weapon presupposes he was armed with it and the court erroneously used the same evidence to prove two distinct factors.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nAppeal by defendant from judgment entered 22 November 1991 by Judge Knox V. Jenkins, Jr. in Wake County Superior Court. Heard in the Court of Appeals 31 March 1993.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Valerie B. Spalding, for the State.\nJohn T. Hall for defendant-appellant." }, "file_name": "0651-01", "first_page_order": 681, "last_page_order": 702 }