State v. Golphin8/25/2000
ory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by these statements.'" Id. at 424, 189 S.E.2d at 241 (quoting State v. Carter, 254 N.C. 475, 479, 119 S.E.2d 461, 464 (1961)).
Locklear is distinguishable. Tilmon was not a witness in the case, and the prosecutor was merely showing the jury instances where Tilmon had not been truthful while giving his statement to law enforcement officers. See Locklear, 294 N.C. at 217, 241 S.E.2d at 70. As for Tilmon's reliance on Bolin, it is misplaced. Tilmon incorrectly stated that we referred to nonexculpatory statements in Bolin, when in fact we referred to instances when the State introduced exculpatory statements. See Bolin, 281 N.C. at 424, 189 S.E.2d at 241. Nevertheless, in addition to the statement Tilmon attributes to Bolin, we also stated: "The introduction in evidence by the State of a statement made by defendant which may tend to exculpate him, does not prevent the State from showing that the facts concerning the homicide were different from what the defendant said about them." Id. at 425, 189 S.E.2d at 241-42. In the instant case, the prosecutor merely pointed out exculpatory statements or omissions to show how the facts differed from Tilmon's statement.
Tilmon was not prejudiced by the prosecutor's contention that portions of Tilmon's statement were lies. Therefore, this assignment of error is overruled.
By numerous assignments of error, both Kevin and Tilmon argue the trial court erred by giving an acting in concert instruction for the first-degree murder and robbery with a dangerous weapon charges. Defendants contend the instruction permitted the jury to find them guilty of first-degree murder and robbery with a dangerous weapon without finding the required intent to commit the crimes, in violation of their constitutional rights. In addition, Kevin argues the evidence was not sufficient to convict him of the first-degree murder or the robbery with a dangerous weapon of Deputy Hathcock. We disagree.
This Court, in Barnes, 345 N.C. at 233, 481 S.E.2d at 71, restated the doctrine of acting in concert as enumerated in State v. Erlewine, 328 N.C. 626, 403 S.E.2d 280 (1991), and State v. Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971), death sentence vacated, 408 U.S. 939, 33 L. Ed. 2d 761 (1972):
" f `two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.'" Erlewine, 328 N.C. at 637, 403 S.E.2d at 286 (quoting Westbrook, 279 N.C. at 41-42, 181 S.E.2d at 586) (alteration in original); see also Gaines, 345 N.C. at 677 n.1, 483 S.E.2d at 414 n.1 ("In State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997), a majority of this Court held that a finding that the accomplice individually possessed the mens rea to commit the crime is not necessary to convict a defendant of premeditated and deliberate murder under a theory of acting in concert.").
Thus, "if two or more persons act together in pursuit of a common plan or purpose, each of them, if actually or constructively present, is guilty of any crime committed by any of the others in pursuit of the common plan." State v. Laws, 325 N.C. 81, 97, 381 S.E.2d 609, 618 (1989), sentence vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 603 (1990), quoted in State v. McCullers, 341 N.C. 19, 29-30, 460 S.E.2d 163, 169 (1995). While a person may be either actually or constructively pr
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