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State v. Gaines4/11/1997
ndant contends that these instructions were an improper expression of opinion in violation of N.C.G.S. §§ 15A-1222 and -1232 and the Fourteenth Amendment to the United States Constitution. This Court has addressed and rejected this argument in State v. Hill, 331 N.C. 387, 417 S.E.2d 765 (1992), cert. denied, 507 U.S. 924, 122 L. Ed. 2d 684, 113 S. Ct. 1293 (1993). This assignment of error is without merit.
ISSUES RAISED BY DEFENDANT HARRIS
Defendant Harris contends that the trial court erred in denying his motion to dismiss the charge of first-degree murder on the ground that the evidence was insufficient.
Defendant contends that the evidence was insufficient to show that he and Gaines were acting in concert. Defendant argues that the evidence was insufficient to show that he was present at the scene, that he did any of the acts, or that he shared a common plan with Gaines to kill Griffin. A defendant may be found guilty of committing a crime under the theory of acting in concert if he is present at the scene of the crime acting together with another person with whom he shares a common plan although the other person does all the acts necessary to carry out the crime. State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994). A defendant's presence at the scene may be either actual or constructive. See Oliver, 309 N.C. 326, 362, 307 S.E.2d 304, 327. A person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime. State v. Willis, 332 N.C. 151, 175, 420 S.E.2d 158, 169 (1992).
In the instant case the evidence was conflicting as to defendant Harris' actual presence during the crime. The State's evidence of defendant's actual presence included the victim's dying identification of his killers and Sandy Bolton's testimony that immediately after she heard a gunshot, she saw three black men running from the area of the lobby out into the parking lot. Defendant presented evidence that he either remained at the car in the nearby State Farm parking lot or walked some distance with Gaines, although not all the way to the motel lobby. This evidence is sufficient to support a finding that defendant was either actually or constructively present at the time of the killing. The evidence also shows that defendant shared Gaines' plan to shoot the victim. When Gaines suggested that he wanted to "get" the victim, defendant encouraged and aided him. Defendant provided Gaines with a shotgun to commit the killing. Defendant then accompanied Gaines back to the motel, and the men parked in the parking lot of another business behind the motel. At this point defendant either remained at the automobile or accompanied Gaines as far as the motel parking lot. When Gaines returned after shooting the victim, defendant left with Gaines and Coleman. Defendant then took possession of the murder weapon and hid it. This evidence was sufficient to show that defendant and Gaines were acting in concert.
Defendant Harris also contends that the evidence is insufficient to convict him of first-degree murder on the theory of aiding and abetting. The basis for this contention is lack of evidence of defendant's presence at the scene of the crime. As we have already discussed, the evidence amply supported the jury's finding that defendant was either actually or constructively present at the scene of the crime. Moreover, we also note that in State v. Bond, 345 N.C. 1, 23-24, 478 S.E.2d 163, 174 (1996), this Court, interpreting N.C.G.S. § 14-5.2, effective 1 July 1981 as to offenses committed after that date, held that actual or constructive presence is no longer required to prove a crime under an aiding
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