State v Floyd, (03-767) 04/20/2004

Appeal by defendant from judgment entered 11 February 2003 by Judge David S. Cayer in Superior Court, Gaston County. Heard in the Court of Appeals 22 March 2004.

Attorney General Roy Cooper, by Assistant Attorney General David G. Heeter, for the State.

Douglas L. Hall, for defendant-appellant.

    WYNN, Judge.


    Defendant, Anessia Floyd, argues the trial court erroneously denied her motion to dismiss the charges of breaking or entering a motor vehicle and misdemeanor larceny. We affirm Defendant's conviction and sentence.
    The State presented evidence tending to show that at approximately 11:30 a.m. on 27 September 2002, Eric Starling, a police officer with the Gastonia Police Department, was seated in his unmarked police vehicle in the parking lot of Martha Rivers Park. Officer Starling observed an older model Oldsmobile automobile occupied by two persons, a driver and a front seat passenger, enter the parking lot. The Oldsmobile traveled very slowly and stopped at an angle across a parking space. OfficerStarling noted that the occupants of the vehicle were looking back and forth across the park. He observed that the passenger almost rotated her body completely while looking around the park. The driver exited the Oldsmobile and looked into other vehicles parked in the lot. The driver looked inside a van, immediately walked back to the Oldsmobile, backed up his vehicle a couple of car lengths, reached into the back floorboard, and returned to the van holding a silver object in his hand. Meanwhile, the passenger of the Oldsmobile moved over to the center of the seat and looked around. The driver pried open the window of the van, reached inside, retrieved two purses, and ran back to the Oldsmobile. Officer Starling moved his vehicle in an attempt to stop the Oldsmobile as it exited the park. Officer Starling also stepped outside his vehicle and displayed his police badge. The Oldsmobile evaded Officer Starling and left the parking lot. As the vehicle passed, Officer Starling observed that the front seat passenger, identified as Defendant, had her hands over her face. Defendant was also leaning back in the seat.
    Other officers of the Gastonia Police Department stopped the Oldsmobile a short distance from the park. Defendant told Officer Starling that she was not aware that he was a police officer and that she didn't know the driver was going to break into a vehicle. She told him that the purses were not hers.
    Barbara Pardue identified the van which was broken into as hers and the purses as belonging to her and a friend. She did not give Defendant permission to break into her van and take thepurses. Defendant did not present any evidence.
    Defendant was found guilty of breaking or entering a motor vehicle and of misdemeanor larceny. The convictions were consolidated and she was sentenced to community punishment. Defendant appeals.
    By her sole assignment of error Defendant contends that the court erred by denying her motion to dismiss at the close of all the evidence. She argues the evidence is insufficient to show that she participated, or that she aided or encouraged the actual perpetrator, in the commission of the offenses.
    Upon a motion to dismiss, the trial court determines whether there is substantial evidence to establish each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). The trial court examines the sufficiency of the evidence to carry the case to the jury and not its weight. State v. Mercer, 317 N.C. 87, 96-97, 343 S.E.2d 885, 891 (1986). "The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged." State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). All of the evidence, whether competent or not, is considered in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). Contradictions and discrepancies in the evidence do not warrant dismissal; rather, they are for resolution by the jury. State v. Benson, 331 N.C. 537,544, 417 S.E.2d 756, 761 (1992). "If there is substantial evidence -- whether direct, circumstantial, or both -- 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).
    Through the principle of acting in concert, a defendant may be found guilty of a crime if she is present at the scene of the crime and the evidence shows she is acting together, pursuant to a common plan or purpose, with another person who commits the acts necessary to constitute the crime. State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). A defendant is also equally guilty of a crime as an aider and abettor if (1) the crime is committed by some other person; (2) the defendant knowingly advised, instigated, encouraged, procured, or aided the other person in the commission of the crime; and (3) the defendant's actions or statements contributed to or assisted with 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 is not guilty of the crime merely because of presence at the scene; the defendant must aid, encourage or communicate an intention to assist the perpetrator. State v. Lemons, 348 N.C. 335, 354, 501 S.E.2d 309, 321 (1998). The intent to aid need not be communicated by express words but may be conveyed by the defendant's actions or relationship to the perpetrator. State v. Sanders, 288 N.C. 285, 291, 218 S.E.2d 352, 357 (1975), cert.denied, 423 U.S. 1091, 47 L. Ed. 2d 102 (1976).
    We conclude the record shows evidence sufficient to permit a jury to find that Defendant aided and abetted the actual perpetrator in the commission of the crimes. When the Oldsmobile arrived in the parking lot and parked, Defendant and the perpetrator both looked around the parking lot. When the perpetrator exited the Oldsmobile and looked into the parked vehicles, Defendant remained in the vehicle and continued to move her head, looking around the park. As the perpetrator broke into the van, Defendant moved to the center of the Oldsmobile and continued to look all around the park. At no time did she attempt to exit the vehicle.
    Based upon the foregoing evidence, a jury could reasonably infer that Defendant assisted the perpetrator by acting as a lookout.     Further, as the vehicle exited the parking lot and passed the officer, Defendant shielded her face and leaned down in the seat. A reasonable inference of guilty knowledge may be drawn from these actions. The credibility of her statement disavowing knowledge of the perpetrator's intent to commit the offenses was for the jury to determine. See Locklear, 322 N.C. at 358, 368 S.E.2d at 383.
    No error.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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