Appeal by defendant from judgment entered 21 March 2001 by
Judge Donald W. Stephens in Wake County Superior Court. Heard in
the Court of Appeals 13 May 2002.
Attorney General Roy Cooper, by Assistant Attorney General
James M. Stanley, Jr., for the State.
Ligon and Hinton, by Lemuel W. Hinton, for defendant-
appellant.
TYSON, Judge.
Clyde Hubert Penny, Jr. (“defendant”) appeals from the trial
court's entry of judgment after a jury returned a verdict finding
defendant guilty of aiding and abetting felony larceny. Defendant
was sentenced as a habitual felon to a minimum term of 134 months
and a maximum term of 170 months.
I. Facts
The State's evidence tends to show that the Hudson Belk store
at Crabtree Valley Mall in Raleigh, North Carolina employed off-
duty Raleigh Police Department officers to stop “hit and run”
thefts. A “hit and run” occurs when a person walks into a store,
grabs a pile of clothing or other merchandise near an exit door,and immediately exits the store. Sergeant Andrew Lull and Officer
Paul Boyer maintained surveillance of the north exit door of the
mall on 5 October 2000, where previous thefts had occurred. Both
officers were seated in Sergeant Lull's personal vehicle. They
observed a vehicle containing a driver and a single passenger stop
on the driveway in front of the walkway located at the north side
of the store. The passenger exited the vehicle and walked toward
the north entrance door of the store. After observing that the
vehicle did not move, Sergeant Lull walked toward the vehicle to
intercept in the event the passenger returned carrying an armful of
clothes. Within fifteen to thirty seconds, the passenger, later
identified as Marzette Toomer, ran out of the store carrying a
large pile of clothes. Sergeant Lull chased Toomer and yelled,
“Stop. Police.” Toomer dove through the open passenger window of
the waiting vehicle. Toomer yelled at the driver, later identified
as defendant, “Go, go, go, go, go, go.” The vehicle lurched
forward a short distance, but stopped abruptly when Officer Boyer
stood in front of the vehicle, pointed his gun at defendant, and
commanded defendant to stop the vehicle. Officer Boyer reached
into the vehicle, placed the transmission lever into park, and
turned off the ignition. The officers arrested defendant and
Toomer. The pile of clothing contained thirty shirts, each shirt
having a price of $50.00.
II. Motion to Dismiss
Defendant contends that the trial court erred by denying his
motion to dismiss the charge for insufficient evidence. Upon amotion to dismiss, the court must determine whether there is
substantial evidence (1) of each essential element of the offense
charged, and (2) to identify the accused as a perpetrator.
State
v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). The court
must examine the evidence in the light most favorable to the State
and give the State the benefit of every reasonable inference that
may be drawn from the evidence.
State v. Benson, 331 N.C. 537,
544, 417 S.E.2d 756, 761 (1992). The court must disregard
contradictions and discrepancies in the evidence, leaving them for
jury resolution.
Id. The test is the same whether the evidence is
direct, circumstantial or both.
State v. Earnhardt, 307 N.C. 62,
68, 296 S.E.2d 649, 653 (1982). If the evidence supports a
reasonable inference of guilt, then the court must deny the motion
and allow the jurors to determine whether the evidence satisfies
them beyond a reasonable doubt of the defendant's guilt.
State v.
Jones, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981).
Defendant argues the evidence is insufficient to show aiding
and abetting. A person is guilty of a crime by aiding and abetting
if (1) the crime was committed by another person; (2) the defendant
knowingly advised, instigated, encouraged, procured or aided the
other person; and (3) the defendant's actions or statements caused
or contributed to the commission of the crime by the other person.
State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996),
cert.
denied, 521 U.S. 1124, 138 L. Ed. 2d 1022 (1997). The defendant
must aid or actively encourage the person committing the crime or
communicate to the perpetrator his intent to assist.
State v.Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999). The
defendant's intent to aid may be inferred from the defendant's
actions and from his relation to the actual perpetrators.
Id.
Defendant drove the vehicle to the north entrance/exit of the
store and remained in the vehicle, with its motor running and
passenger window down, while his passenger, Toomer, exited the
vehicle and walked into the store. Within fifteen to thirty
seconds, Toomer darted from the store carrying an armful of stolen
shirts, jumped into defendant's vehicle through the open passenger
window, and implored defendant to drive. Defendant drove forward
until he was stopped by one of the officers pointing a gun at
defendant.
The foregoing evidence is sufficient to permit a jury to find
that defendant aided and abetted in the commission of the crime.
We hold the court properly denied the motion to dismiss.
III. Requested Instruction
Defendant also contends that the court erred by failing to
submit a requested instruction that the mere presence of one at the
scene of a crime is insufficient to make the person guilty as an
aider and abettor. The trial court must give a requested
instruction if it is a correct statement of the law and is
supported by evidence.
State v. Rose, 323 N.C. 455, 458, 373
S.E.2d 426, 428 (1988). The requested instruction need not be
given in the exact language of the request as long as the gist of
the instruction is given in substance by the court.
State v.
Townsend, 99 N.C. App. 534, 538, 393 S.E.2d 551, 553 (1990). Defendant requested the following instruction:
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 its
commission.
The court instructed the jury that in order to find defendant
guilty, it had to find defendant “knowingly committed acts that
aided and assisted” Toomer in the commission of the crime or
defendant's “actions caused or contributed to the commission of the
crime” by Toomer.
The instructions given by the court adequately expressed
defendant's requested instruction that the defendant must actually
aid or actively encourage the perpetrator
. See State v. Hockett,
69 N.C. App. 495, 500, 317 S.E.2d 416, 420 (1984). This assignment
of error is overruled.
Defendant received a trial free from errors he assigned.
No error.
Judges GREENE and HUDSON concur.
Report per Rule 30(e).
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