State v Simmons, (04-731) 01/04/2005

Appeal by defendant from judgment entered 16 January 2004 by Judge Clarence Horton in Stanly County Superior Court. Heard in the Court of Appeals 28 December 2004.

Attorney General Roy Cooper, by Associate Attorney General Joseph E. Elder, for the State.

Kevin P. Bradley for defendant-appellant.

MARTIN, Chief Judge.

    A jury found defendant guilty of felonious breaking and entering, and felonious larceny. He then pled guilty to having attained status as habitual felon. Defendant appeals from judgment consolidating the convictions and imposing an active term of a minimum of 116 months and a maximum of 149 months.
    The State presented evidence tending to show that at approximately 7:55 a.m. on 24 May 2001, Ms. Wanda Faulkner left her residence at 28272 Austin Road in Stanly County. As she prepared to leave in her vehicle, she observed a dark color four door automobile without a back window pass by her house.
    About 8:15 a.m. on 24 May 2001, Ms. Jennifer Chamley drove past the Faulkner residence and observed two black men walkingdiagonally across the yard of the Faulkner residence headed away from the carport. Both men wore sweatshirts with hoods over their heads. One man wore yellow gloves while the other wore dark gloves. She also observed a man standing outside a black automobile nearby.
    About 8:15 a.m. to 8:20 a.m. Trooper Bobby Barringer of the North Carolina Highway Patrol drove past the Faulkner residence and observed a black Ford Taurus parked on the shoulder of the road. A man was standing outside the right side of the vehicle and looking toward the Faulkner residence. Trooper Barringer turned his vehicle around. The person standing outside the Taurus got into the vehicle and then the vehicle made a right turn toward the Faulkner residence. Trooper Barringer drove his vehicle behind the Taurus and observed that its back window was broken out. The trooper observed two black men walk across the yard of the Faulkner residence and get into the black Ford Taurus. The shorter of the two men dropped an object to the ground just before entering the vehicle. Trooper Barringer identified the object as a purple wallet. Trooper Barringer approached the vehicle and questioned its occupants. All of the occupants denied having any knowledge about the wallet. Trooper Barringer then heard a radio dispatch directing the Stanly County Sheriff's Department to investigate an alarm call at 28272 Austin Road. He detained the occupants of the vehicle pending arrival of sheriff's deputies. He gave the officers the wallet. Trooper Barringer identified defendant as the taller of the two men who entered the vehicle.     The sheriff's deputies observed that the kitchen door of the Faulkner residence had been kicked open. They also found shoe prints on the carport side of the door. They compared the shoe prints to the bottoms of shoes confiscated from Titus McClendon, one of the two men seen getting into the black Taurus. The shoe prints “depict[ed] a like representation” to the shoes confiscated from McClendon. The deputies searched the black Ford Taurus and found two dark hooded jackets in the back seat and a pair of tan leather gloves.
    Randy Faulkner, a resident of 28272 Austin Road, identified the purple wallet picked up by Trooper Barringer as an item usually kept in a bowl in the kitchen of his residence. He testified that he purchased the wallet for his son, and that it had contained money the last time he saw it before the break-in.
    Defendant assigns as error the denial of his motion to dismiss the charges for insufficient evidence and the submission of an instruction on acting in concert. Both of these assignments of error are premised on the argument that evidence is lacking to show defendant acted in concert with anyone to commit the crimes.     The principle of acting in concert states that
        [i]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.”

State v. Barnes, 345 N.C. 184, 231, 481 S.E.2d 44, 71 (1997), cert. denied, 523 U.S. 1024, 140 L. Ed 2d 473 (1998)(internal citationsomitted). To be convicted of a crime based upon the principle of concerted action, it is not necessary for a defendant to commit any particular act constituting a part of the crime so long as the evidence shows he was present at the scene of the crime and he acted with a perpetrator pursuant to a common plan or purpose to commit the crime. State v. Joyner, 297 N.C. 349, 357, 255 S.E.2d 390, 395 (1979). An instruction on the principle of concerted action is warranted if there is evidence to support it. State v. Davis, 301 N.C. 394, 399, 271 S.E.2d 263, 265 (1980).
    In deciding a motion to dismiss, the court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). “Where there is no direct evidence as to the essential fact involved in the issue to be passed upon by the jury, such fact may nevertheless be inferred by the jury from facts and circumstances which they may find from the evidence.” State v. Weston, 197 N.C. 25, 28, 147 S.E. 618, 620 (1929). “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).
    In the present case, Ms. Chamley testified that she saw both men walking across the Faulkner yard headed away from the carport, the point of entry of the house, within twenty minutes after Ms. Faulkner had departed. Both men wore hooded shirts and gloves. Both Trooper Barringer and Ms. Chamley testified that they saw a man standing beside a black vehicle looking toward the Faulkner house. Trooper Barringer saw the black vehicle proceed toward the Faulkner residence. Two men walking across the Faulkner property, defendant-appellant and Titus McClendon, got into that vehicle, and McClendon discarded an item that had been inside the kitchen of the Faulkner residence near the point of entry.
    Although there was no evidence placing defendant-appellant inside the house and no witnesses saw defendant-appellant until immediately after the crime occurred, he was present at the scene of the crime and he got into the “get-away” car with Titus McClendon. We hold this to be sufficient evidence for a jury to infer that defendant-appellant participated in the crime with McClendon. Therefore, we conclude the evidence is sufficient to support the court's submission of the instruction on acting in concert and its denial of the motion to dismiss.
    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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