STATE OF NORTH CAROLINA
v. Columbus County
No. 04 CRS 54711
KENNETH DARRIAN JONES
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Kimberly D. Potter, for the State.
Thomas R. Sallenger, for defendant-appellant.
JACKSON, Judge.
Kenneth Darrian Jones (“defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of robbery with a
dangerous weapon.
On 10 December 2004, two masked men, one carrying a large gun,
entered Sam's Pit Stop, a store and gasoline station in Hallsboro,
and demanded all of the money in the cash register. The cashier
gave them all of the money in the register, and the two men exited
the store. The cashier could not identify the two men.
At about the same time, Sgt. James Pierce of the Columbus
County Sheriff's Department was patrolling the area of Sam's Pit
Stop store. He saw a vehicle parked behind the store. Thinking
this was unusual, Sgt. Pierce turned his vehicle around and wentback to the store to investigate. As Sgt. Pierce's vehicle
approached, the vehicle behind the store left the parking lot of
the store and proceeded down the road. About a minute later, Sgt.
Pierce received a dispatch that the store was being robbed. Sgt.
Pierce called for backups and gave a description of the vehicle he
saw leaving the store.
Deputy Adam Sellers also heard the dispatch. Deputy Sellers
encountered a vehicle matching the description given by Sgt.
Pierce. Deputy Sellers stopped the vehicle, which was being driven
by defendant. Two other officers subsequently arrived to assist.
One of the officers brought defendant back to the store, but the
store clerk could not identify defendant as one of the
perpetrators.
One of the officers asked defendant to sit in his car with the
officer and talk to him. Defendant complied, and sat in the
officer's passenger seat and told the officer what had happened.
Defendant gave a written signed statement that he drove two men,
Jonathan Moore (“Moore”) and Corey Peterson (“Peterson”), to the
store at their request. The two men were talking about “being
hungry.” Defendant interpreted the statement as meaning “they were
hungry for money.” Peterson, carrying a long black gun, and Moore
exited the vehicle and entered the store. As defendant waited in
the vehicle, he saw a sheriff's car. Upon seeing the sheriff's
vehicle, he decided to leave. He did not wait for the other two
men to return, and he drove to his sister's house. He then decided
to return to the store to check on Moore and Peterson. On the way,a Sheriff's Deputy stopped his vehicle.
A jury found defendant guilty, and the trial court sentenced
defendant to an active term of eighty-two to 108 months.
Defendant appeals to this Court.
On appeal, defendant assigns as error that: (1) the trial
court erred in denying his motion to dismiss because the evidence
was insufficient to convince a rational trier of fact of
defendant's guilt beyond a reasonable doubt; (2) the trial court
erred, or committed plain error, when it instructed the jury of
acting in concert when such instruction was not supported by law or
fact; and (3) the trial court erred, or committed plain error, when
it instructed the jury of aiding and abetting when such instruction
was not supported by law or fact.
Defendant argues his first two assignments of error together,
and contends the trial court erred by denying his motion to dismiss
the charge of robbery with a dangerous weapon. In deciding 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 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). “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) (quoting
Earnhardt, 307 N.C. at 67, 296 S.E.2d at 652) (emphasis in
original).
Robbery with a dangerous weapon is defined in North Carolina
General Statutes, Section 14-87 as:
(a) Any person or persons who, having in
possession or with the use or threatened use
of any firearms or other dangerous weapon,
implement or means, whereby the life of a
person is endangered or threatened, unlawfully
takes or attempts to take personal property
from another or from any place of business,
residence or banking institution or any other
place where there is a person or persons in
attendance, at any time, either day or night,
or who aids or abets any such person or
persons in the commission of such crime, shall
be guilty of a Class D felony.
N.C. Gen. Stat. . 14-87(a) (2005). A person is a party to an
offense and is equally as guilty as the principal perpetrator if he
(1) “either actually commits the offense or does some act which
forms a part thereof, or [(2)] if he assists in the actual
commission of the offense or of any act which forms part thereof,
or [(3)] directly or indirectly counsels or procures any person to
commit the offense or to do any act forming a part thereof.” State
v. Keller, 268 N.C. 522, 526, 151 S.E.2d 56, 58 (1966) (citing 22
C.J.S., Criminal Law, . 79, 1961) . If two or more persons join in
a purpose to commit a crime, each of them, if actually or
constructively present, is guilty as a principal of any crime
committed by the others in pursuance of the common purpose or as a
natural or probable consequence thereof. State v. Barnes, 345 N.C.
184, 233, 481 S.E.2d 44, 71 (1997), cert. denied, 523 U.S. 1024,140 L. Ed. 2d 473 (1998).
We conclude that a reasonable inference may be drawn from the
evidence that defendant acted in concert with the two other men to
commit robbery with a dangerous weapon. Defendant knew the men
were seeking money when he dropped them off at the store.
Defendant saw one of the men carry a gun into Sam's Pit Stop store.
When defendant saw the sheriff's vehicle, he fled. He later
returned to offer assistance to the two men, but was stopped by law
enforcement before he could return to the store. The State
presented physical and testimonial evidence that corroborated both
defendant's written signed statement, and that two men committed
armed robbery at the store. Therefore, the State presented
sufficient evidence in which a reasonable juror could conclude that
defendant acted in concert with others who committed robbery with
a dangerous weapon. Accordingly, defendant's first two assignments
of error are overruled.
Defendant next contends that the trial court erred by
instructing the jury of aiding and abetting. Defendant argues the
aiding and abetting instruction was not supported by the evidence
or the indictment, which charged that he acted in concert with the
others in committing robbery with a dangerous weapon.
Since defendant failed to object to this instruction at trial,
we are limited to plain error review. State v. Jordan, 333 N.C.
431, 440, 426 S.E.2d 692, 697 (1993). “Under the plain error rule,
defendant must convince this Court not only that there was error,
but that absent the error, the jury probably would have reached adifferent result.” Id. (citing State v. Faison, 330 N.C. 347, 411
S.E.2d 143 (1991)). In the present case, defendant has failed to
show that the trial court's instruction for aiding and abetting was
error so fundamental that the jury would have reached a different
verdict. Furthermore, our Supreme Court has stated that a trial
court's instruction both on acting in concert and aiding and
abetting is not prejudicial. See State v. Roache, 358 N.C. 243,
312, 595 S.E.2d 381, 425 (2004). Therefore, the trial court did
not err in instructing the jury with aiding and abetting, and
defendant's assignment of error is overruled. Accordingly, we hold
no error.
No Error.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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