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State v. Gaines4/11/1997
nd beyond a reasonable doubt these three things, the aiding and abetting part of it would be satisfied.
Acting in concert differs in that the State, if the State proves from the evidence beyond a reasonable doubt that the one against whom the theory of acting in concert is being asserted was at or, was at the scene of the crime, then acting in concert could be, could be used. Aiding and abetting does not require that proximity or nearness to the scene of the crime.
Defendant did not object to these instructions. He contends that by erroneously instructing the jury that defendant did not have to be present at the scene in order to be convicted of an offense under the theory of aiding and abetting, the trial court directed a verdict as to this element of the offense. Defendant further contends that the erroneous instruction violated his right to a trial by jury under the North Carolina Constitution.
Under State v. Bond, 345 N.C. at 24, 478 S.E.2d at 175, the trial court was not required to instruct on defendant Harris' presence or lack thereof.
Furthermore, since defendant did not object to these instructions, any review is limited to plain error. State v. Odom, 307 N.C. 655, 300 S.E.2d 375. Only in a rare case will an improper instruction justify reversal of a criminal conviction when no objection was made at trial. Allen, 339 N.C. at 558, 453 S.E.2d at 157. To find plain error, "the error in the trial court's jury instructions must be 'so fundamental as to amount to a miscarriage of Justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" Collins, 334 N.C. at 62, 431 S.E.2d at 193.
In the instant case the evidence indicates that if defendant was not actually present with Gaines when Gaines killed the victim, he was nearby. The record reveals substantial evidence of defendant's constructive presence at the scene of the crime. Therefore, the jury probably would not have reached a different verdict but for the trial court's instruction as to presence. This assignment of error is overruled.
In another assignment of error, defendant Harris contends that the trial court erred in instructing the jury on the "friend" exception as part of the instruction on aiding and abetting. In instructing the jury on aiding and abetting, the trial court stated:
However, a person is not guilty of a crime merely because he is present at the scene, even though he may silently approve of the crime or secretly intend to assist in its commission. To be guilty, he must aid or actively encourage the person committing the crime, or in some way communicate to this person his intention to assist in the commission of the crime. An exception to that is when the bystander, . . . alleged to be Bryan Harris under the current instructions, is a friend of the perpetrator, Allen Gaines, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone may be regarded as encouragement.
Defendant argues that a person's mere presence at the scene of the crime is not enough to show aiding and abetting.
The trial court's instructions were a correct statement of the law and were supported by the evidence. See State v. Amerson, 316 N.C. 161, 166-67, 340 S.E.2d 98, 101 (1986). Accordingly, this assignment of error is overruled.
Defendant next argues that the trial court erred in failing to intervene ex mero motu to prohibit certain prosecutorial arguments. He first points to the prosecutor's argument that the victim's "gasp" drew motel clerk Kevin Penegar's attention to the victim's face and argues that there was no evidenc
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