State v. Golphin8/25/2000
34, 343 (1998). To withstand a defendant's motion to dismiss, "the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator." Call, 349 N.C. at 417, 508 S.E.2d at 518. " he trial court should consider all evidence actually admitted, whether competent or not, that is favorable to the State." State v. Jones, 342 N.C. 523, 540, 467 S.E.2d 12, 23 (1996).
Circumstantial evidence may be utilized to overcome a motion to dismiss "`even when the evidence does not rule out every hypothesis of innocence.'" Thomas, 350 N.C. at 343, 514 S.E.2d at 503 (quoting State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)). If the trial court finds substantial evidence, whether direct or circumstantial, or a combination, "to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). If, however, the evidence "is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator, the motion to dismiss must be allowed." State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
Regarding the sufficiency of the evidence of the charges of first-degree murder and robbery with a dangerous weapon of Deputy Hathcock against Kevin, the trial court instructed the jury with an acting in concert instruction based on the possession of a stolen vehicle. As we previously held, this instruction was proper. Therefore, our inquiry is limited to whether there was sufficient evidence of first-degree murder by Kevin, Tilmon, or both, and robbery with a dangerous weapon by Kevin, Tilmon, or both, based on the common purpose of possessing the stolen vehicle.
We find there was sufficient evidence that Kevin and Tilmon acted with a common purpose in possessing the stolen vehicle. The evidence showed Kevin and Tilmon were riding together from Kingstree to Richmond when they were stopped by Trooper Lowry near Fayetteville. Although Kevin was driving the stolen vehicle, in his statement to Agent Tilley, he admitted giving Tilmon's driver's license to Trooper Lowry. After shooting both Trooper Lowry and Deputy Hathcock, Kevin and Tilmon retrieved the officers' weapons and left the scene in the stolen vehicle. There is also evidence they exited the highway to remove the license plate from the stolen vehicle to avoid detection.
Moreover, without utilizing the acting in concert theory, there was sufficient evidence Kevin committed first-degree murder. Contrary to Kevin's argument that Tilmon shot Deputy Hathcock with Trooper Lowry's weapon prior to retrieving the rifle, Kevin, in his statement to Agent Tilley, stated he took Trooper Lowry's gun from the trooper's holster. Kevin also stated Tilmon did not fire the trooper's gun, and he did not think Tilmon ever had the trooper's gun in his possession. After initially denying that he had shot a gun on the day in question, Kevin eventually admitted shooting the trooper's gun. A gunshot residue test on Kevin's hands revealed that he had shot a weapon recently. Additionally, a .40-caliber bullet from Trooper Lowry's gun was recovered from Deputy Hathcock's body during the autopsy, and that .40-caliber wound was a fatal wound.
In addition, a rational trier of fact could find Kevin and Tilmon committed robbery with a dangerous weapon of Deputy Hathcock. The evidence shows Tilmon shot Deputy Hathcock with an assault rifle. Thereafter, Tilmon retrieved Deputy Hathcock's weapon. There is also evidence that Kevin inf
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