State v. Gaines4/11/1997
and abetting theory. We now hold that to the extent our cases decided after N.C.G.S. § 14-5.2 became applicable suggest that actual or constructive presence is necessary to prove a crime under an aiding and abetting theory, these cases are no longer authoritative on this issue. E.g., State v. Vanhoy, 343 N.C. 476, 480, 471 S.E.2d 404, 407 (1996); State v. Allen, 339 N.C. 545, 558, 453 S.E.2d 150, 157 (1995); State v. Hunt, 323 N.C. 407, 424, 373 S.E.2d 400, 411 (1988), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602 (1990); State v. Belton, 318 N.C. 141, 150-51, 347 S.E.2d 755, 761 (1986); State v. Rogers, 316 N.C. 203, 229, 341 S.E.2d 713, 728 (1986), overruled on other grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Amerson, 316 N.C. 161, 166-67, 340 S.E.2d 98, 101 (1986).
We also reject defendant's contention that the evidence was insufficient to support his conviction under the "friend" exception to the mere presence rule. The evidence demonstrates that defendant encouraged and intended to assist Gaines, that Gaines knew of defendant's support and encouragement, and that defendant was not merely present. See State v. Scott, 289 N.C. 712, 722, 224 S.E.2d 185, 190 (1976).
Defendant Harris further contends the evidence was insufficient to show that he had the requisite mens rea for the crime under either theory of accomplice liability. Defendant argues that the evidence that he provided the weapon used in the shooting and hid it afterward is not substantial evidence of the mens rea to commit first-degree murder. We do not agree.
Proof of premeditation and deliberation is proof of a specific intent to kill. State v. Thomas, 332 N.C. 544, 560, 423 S.E.2d 75, 84 (1992).
Among the circumstances which may be considered as tending to show premeditation and deliberation are: (1) the want of provocation on the part of the victim, (2) the defendant's conduct and statements before and after the killing, (3) threats made against the victim by the defendant, (4) ill will or previous difficulty between the parties, (5) evidence that the killing was done in a brutal manner. The nature and number of the victim's wounds is also a circumstance from which an inference of premeditation and deliberation may be drawn.
State v. Myers, 309 N.C. 78, 84, 305 S.E.2d 506, 510 (1983) (citations omitted). In this case the evidence of defendant's conduct before and after the killing is sufficient to support a finding beyond a reasonable doubt that Harris acted with premeditation and deliberation. This assignment of error is overruled.
Defendant Harris also contends the trial court erred by erroneously instructing the jury that defendant did not have to be present at the scene of the crime in order to be convicted of a crime under the theory of aiding and abetting. After beginning its deliberations, the jury asked to be instructed on the definitions of acting in concert, aiding and abetting, friends, and scene of the crime. In response to this request, the trial court reinstructed the jury in part as follows:
Now, as to aiding and abetting. A person may be guilty of the crime charged, in this case, murder in the first degree, or some lesser included offense, if the evidence gives rise to that, although he or they, as the case may be, personally does not or do not do any of the acts necessary to constitute that crime. In aiding and abetting, the State does not have to prove that the defendant who is being sought to be convicted under that theory that that defendant was present at the scene. But the State must prove three things beyond a reasonable doubt. If you find from the evidence, find from the evidence a
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