State v. Brown , 80 N.C. App. 307 ( 1986 )

342 S.E.2d 42 (1986)

STATE of North Carolina
v.
Jessie BROWN.

No. 851SC1159.

Court of Appeals of North Carolina.

April 15, 1986.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Kathryn L. Jones, Raleigh, for the State.

John W. Halstead, Jr., Elizabeth City, for defendant-appellant.

MARTIN, Judge.

Defendant assigns error to the denial of his motion to dismiss and to the trial court's instructions to the jury. For error in the trial court's instructions to the jury, we must order a new trial.

Defendant first contends that the court erred by denying his motion to dismiss at the close of all the evidence. He argues that there was insufficient evidence to establish that his acts were the proximate cause of Stone's death.

In ruling on a motion to dismiss, the trial court must determine whether the State has produced substantial evidence of each element of the offense and that defendant was the perpetrator. State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607 (1982). "The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal...." State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).

Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation. State v. Brown, 300 N.C. 731, 268 S.E.2d 201 (1980). The State must produce evidence which is sufficient to show beyond a reasonable doubt that defendant's unlawful acts were the proximate cause of the victim's death. However, defendant's acts need not be the sole proximate cause of death. It is sufficient if defendant's "unlawful acts join and concur with other causes in producing" the victim's death. State v. Cummings, 46 N.C.App. 680, 683, 265 S.E.2d 923, 926, aff'd, 301 N.C. 374, 271 S.E.2d 277 (1980).

From the evidence presented at trial the jury could find that defendant's kicking the victim several times in the abdominal area caused or contributed to the victim's death. Thus, the trial court properly overruled defendant's motion to dismiss.

The defendant next contends the court erred by giving the following instruction to the jury:

You must clearly understand that, if a person aids and abets in the commission of voluntary manslaughter or involuntary manslaughter, he is guilty of those crimes, either or both, just as if he had personally done all the acts necessary to constitute that crime.

Now, as to the defendant, Jesse Brown, I charge that for you to find Jesse Brown guilty of voluntary manslaughter or involuntary manslaughter because of aiding and abetting the State must prove from the evidence and beyond a reasonable doubt that voluntary manslaughter or involuntary manslaughter was committed by another person or other persons acting in concert, and, second, that the defendant, Jesse Brown knowingly advised, instigated, encouraged, or aided another or others acting in concert to commit voluntary manslaughter or involuntary manslaughter. However, a person is not guilty of the 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 and actively encourage the person committing the crime or in some way communicate to this person his intention to assist in its commission. So, I charge that if you find from the evidence and beyond a reasonable doubt that on or about October 14, 1984 that another person or others, either known or unknown, committed voluntary manslaughter, that is that another or others known or unknown, intentionally kicked, stomped or struck with a chair, pool cue or stick, William D. Stone, proximately causing William D. Stone's death, and that Jesse Brown by his conduct knowingly advised, instigated, encouraged or aided another or others either known or unknown, to commit voluntary manslaughter, it would be your duty to return a verdict of guilty of voluntary manslaughter. If you do not find the defendant Jesse Brown guilty of voluntary manslaughter by aiding and abetting that crime, or if you have a reasonable doubt as to one or more of those things, then it would be your duty to return a verdict of not guilty of voluntary manslaughter by reason of aiding and abetting. You must then determine whether the defendant Jesse Brown is guilty of involuntary manslaughter by aiding and abetting.

The defendant contends the foregoing instructions permitted the jury to convict him on the theory that he aided and abetted the other persons involved in the beating of Stone, a theory unsupported by the evidence. We agree. There is no evidence that defendant acted as an aider and abettor to other persons in beating Stone. All the evidence shows that defendant acted independently of the others in his assault on the victim. Thus, there was no basis in the evidence for the court to instruct the jury on the law of aiding and abetting. It is generally error, prejudicial to defendant, for the trial court to instruct the jury upon a theory of a defendant's guilt which is not supported by the evidence. State v. Dammons, 293 N.C. 263, 237 S.E.2d 834 (1977). This error entitles defendant to a new trial.

In view of our decision, we deem it unnecessary to address defendant's remaining assignments of error.

New trial.

HEDRICK, C.J., and WELLS, J., concur.