State v. Golphin8/25/2000
esent at the scene, see State v. Oliver, 309 N.C. 326, 362, 307 S.E.2d 304, 327 (1983), " 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." Gaines, 345 N.C. at 675-76, 483 S.E.2d at 413; see also State v. Willis, 332 N.C. 151, 175, 420 S.E.2d 158, 169 (1992).
In the instant case, in instructing the jury on the first-degree murder charges, the trial court included an acting in concert instruction consistent with the pattern instruction, and stated:
For a person to be guilty of a crime, it is not necessary that he himself do all the acts necessary to constitute the crime. If two or more persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty of that crime of, in this case, possession of a stolen vehicle, if the other commits the crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose to commit the crime of possession of a stolen vehicle. See N.C.P.I.--Crim. 202.10 (1998).
A similar instruction was included in the jury instruction for robbery with a dangerous weapon, pursuant to N.C.P.I.--Crim. 202.10.
In its mandate on each charge of first-degree murder, the trial court instructed as follows:
I charge that if you find from the evidence beyond a reasonable doubt that on or about the twenty-third day of September, 1997, the defendant [defendant's name], acting either by himself or acting together with [other defendant's name], intentionally killed the victim [victim's name] with a deadly weapon, thereby proximately causing the victim [victim's name] death, and that the defendant [defendant's name] acted with malice, with premeditation and with deliberation, it would be your duty to return a verdict of guilty of first degree murder.
Similarly, in its mandates on robbery with a dangerous weapon, the trial court gave instructions substantially similar to the following:
as to the charge of robbery with a firearm in which [defendant's name] is the defendant and in which [victim's name] is the alleged victim, I charge that if you find from the evidence beyond a reasonable doubt that on or about the twenty-third day of September, 1997, the defendant [defendant's name] had in his possession a firearm and took and carried away property from the person or presence of [victim's name], without [victim's name]'s voluntary consent, by endangering or threatening [victim's name]'s life with the use or threatened use of a firearm, the defendant [defendant's name] knowing that he was not entitled to take the property and intending to deprive [victim's name] of its use permanently, it would be your duty to return a verdict of guilty of robbery with a firearm in the case in which [victim's name] is the alleged victim.
We note the trial court's acting in concert instructions comported in all respects with our previous case law. Therefore, defendants' arguments in this regard are without merit.
We next address whether there was sufficient evidence to submit the charges of first-degree murder and robbery with a dangerous weapon of Deputy Hathcock against Kevin. Kevin made a motion to dismiss to preserve this issue for appellate review. The trial court denied that motion. "In ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom." Nobles, 350 N.C. at 504, 515 S.E.2d at 898; see also Call, 349 N.C. at 417, 508 S.E.2d at 518; State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 3
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