State v. McNeil

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-238
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
v. Cumberland County
No. 12CRS058034
JERMAINE MCNEILL,
Defendant.
Appeal by defendant from judgment entered on or about 19
September 2013 by Judge Mary Ann Tally in Cumberland County
Superior Court. Heard in the Court of Appeals 11 August 2014.
Attorney General Roy A. Cooper III, by Assistant Attorney
General Robert K. Smith, for the State.
Gilda C. Rodriguez for defendant-appellant.
STROUD, Judge.
Upon the jury’s verdict finding defendant guilty of robbery
with a dangerous weapon, the trial court sentenced him to an
active prison term of 60 to 84 months. Defendant now appeals
from the judgment.
I. The State’s Evidence
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On the night of 22 June 2012, Lokie Stephenson entered a
Wilco Hess gas station on Raeford Road, approached the sales
counter, and purchased a cigar from the employee on duty, Sylvia
Smith. When Smith opened the cash drawer, Stephenson brandished
a small metallic handgun, removed approximately $150.00 from
the drawer, and exited the store through the left-hand door,
which “headed toward Skibo.” Smith immediately called 911.
Eric Perez, Jr., was pumping gas at the Wilco Hess station
at the time of the robbery. Looking into the store, he saw that
the clerk had her hands in the air and saw a man in a white
shirt and blue jeans behind the store’s counter. When the man
exited the store, Perez “walked in and asked [the clerk] if she
was all right.” Smith told Perez she had been robbed. As Perez
returned to his car, he observed a silver Lincoln “pulling out
of the parking lot” from “the next set of driveways” adjacent to
the Wilco Hess. The Lincoln “pulled off pretty fast” onto
Raeford Road heading “towards Skibo[.]”
Fayetteville Police Officer Vernon Thomas Parker was on
patrol in the area of Skibo and Raeford Roads when he received a
“be on the lookout” (“BOLO”) call for a vehicle allegedly
involved in a robbery of the Wilco Hess gas station at Raeford
Road and Roxie Avenue. Within two to five minutes, he spotted a
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silver or gray Lincoln matching the BOLO description “driving at
a high rate of speed” on Raeford. After observing the Lincoln
turn right onto “Skibo Road from Raeford Road at a high rate of
speed” and in a “careless and reckless” manner, Officer Parker
pulled his patrol car behind the vehicle. Visible inside the
Lincoln were a driver, later identified as defendant, and a
single passenger, later identified as Stephenson. “The
passenger was looking back” as though “to see who was behind
him.” As they approached a railroad crossing, Officer Parker
saw the driver look back toward him in his mirror. The Lincoln
then “cut across” four lanes of traffic and pulled into a
Kangaroo gas station at the corner of Skibo and Cliffdale,
stopping beside a fuel pump. Officer Parker parked his patrol
car two or three lengths away from the fuel pump. He observed a
“conversation” between the passenger and driver and saw the
passenger “continuously reaching up under his seat[.]”
Officer Parker called for backup and was soon joined at the
scene by Officer Kenneth Tims. As the two officers approached
the Lincoln, Stephenson exited the passenger’s side door and
began to walk away. Officer Parker detained Stephenson while
Officer Tims approached the driver’s side door and twice ordered
defendant to show his hands. Defendant “stuck his left hand out
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the driver’s window” but “continued to fumble with his right
hand” in the vicinity of “the center console of the vehicle.”
Only after Officer Tims ordered the driver to show his hands for
a third time did defendant “finally st[i]ck his . . . right hand
out the window.” Officer Tims removed defendant from the
vehicle and placed him in the back of a patrol car. Officer
Tims then searched the Lincoln’s interior as follows:
I observed inside the suspect vehicle there
was cash laying near the end of the
passenger seat. Small denominations of
bills—1’s and 5’s—near the buckle where the
seat belt fastens. The center console,
there was also cash sticking out of the
closed center console, the armrest portion
of it, and I could see cash sticking out.
Officer Tims also found a wadded-up $5 bill in the vehicle’s
ashtray and a “small silver handgun under the passenger seat.”
A total of $144 in cash – “three $20 bills, one $10 bill,
seven $5 bills, [and] 39 $1 bills” – was collected from the
vehicle. The gun and currency were admitted into evidence at
trial. Photographs of the vehicle’s center console with cash
“kind of sticking out” were also published to the jury.
Approximately 20 minutes after the robbery, Officer Josue
Rivera brought Smith to the Kangaroo station to view the two
suspects. Smith identified Stephenson as the person who robbed
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her, noting that he “was still wearing everything that he was
wearing at the time [of] the robbery[.]” However, she testified
that she did not see a getaway car or driver and could not
identify them.
At trial, Perez identified photographs of the Lincoln
stopped by Officer Parker as the “vehicle that pulled out of the
parking lot a little further up from the gas station.” The car
was registered to Stephenson’s girlfriend, Jewel McFall.
II. Jury Instructions
On appeal, defendant first challenges the trial court’s
decision to instruct the jury on the doctrines of concerted
action and aiding and abetting. He argues that the State’s
evidence did not show that he was actually or constructively
present at the robbery or that he shared a common plan or
purpose with Stephenson, as required to establish their acting
in concert. Likewise, defendant contends the evidence did not
show he knowingly aided Stephenson’s robbery of the Wilco Hess
simply because he was driving the vehicle in which Stephenson
was later found.
“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. Brown,
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80 N.C. App. 307, 311, 342 S.E.2d 42, 44 (1986). Accordingly, a
jury instruction on a theory of criminal liability must be
“based upon a state of facts presented by some reasonable view
of the evidence.” State v. Sweat, 366 N.C. 79, 89, 727 S.E.2d
691, 698 (2012) (citation and quotation marks omitted). Whether
a particular jury instruction is supported by the evidence is a
question of law subject to de novo review. State v. Gabriel,
207 N.C. App. 440, 443, 700 S.E.2d 127, 129 (2010), disc. review
denied, 365 N.C. 211, 710 S.E.2d 19 (2011).
“In order to support a jury instruction on acting in
concert, the evidence must be sufficient to show that the
defendant was present at the scene of the crime and that the
defendant was acting together with another who did the acts
necessary to constitute the crime pursuant to a common plan or
purpose to commit the crime.” Id. at 443-44, 700 S.E.2d at 129.
The defendant’s presence at the scene may be actual or
constructive. This Court has held that the driver of a getaway
car in an armed robbery “may be constructively present at the
scene of a crime although stationed a convenient distance away.”
State v. Combs, 182 N.C. App. 365, 370, 642 S.E.2d 491, 496,
aff’d per curiam, 361 N.C. 585, 650 S.E.2d 594 (2007). As for
the requirement of a “common plan or purpose[,]” Gabriel, 207
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N.C. App. at 443-44, 700 S.E.2d at 129, we have explained that
“acting in concert does not require an express agreement between
the parties. All that is necessary is an implied mutual
understanding or agreement to do the crimes.” State v. Hill,
182 N.C. App. 88, 93, 641 S.E.2d 380, 385 (2007) (citation and
quotation marks omitted).
“An instruction on aiding and abetting is supported . . .
if there is evidence: ‘(1) that the crime was committed by
another; (2) that the defendant knowingly . . . aided the other
person; and (3) that the defendant’s actions . . . contributed
to the commission of the crime by the other person.’” State v.
Baskin, 190 N.C. App. 102, 111, 660 S.E.2d 566, 573 (quoting
State v. Bond, 345 N.C. 1, 24, 478 S.E.2d 163, 175 (1996)).
Aiding and abetting may be established by proof that a person
accompanies the actual perpetrator to the
vicinity of the offense and, with the
knowledge of the actual perpetrator, remains
in that vicinity for the purpose of aiding
and abetting in the offense and sufficiently
close to the scene of the offense to render
aid in its commission, if needed, or to
provide a means by which the actual
perpetrator may get away from the scene upon
the completion of the offense.
State v. Pryor, 59 N.C. App. 1, 7, 295 S.E.2d 610, 615 (1982)
(emphasis added) (citation and quotation marks omitted). Like
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acting in concert, “aiding and abetting [does not] require a
defendant to expressly vocalize h[is] assent to the criminal
conduct.” State v. Marion, ___ N.C. App. ___, ___, 756 S.E.2d
61, 68 (2014). “Communication of intent to [aid] the
perpetrator may be inferred from the defendant’s actions and
from his relation to the perpetrator.” State v. Allen, 127
N.C. App. 182, 185, 488 S.E.2d 294, 296 (1997).
Our Supreme Court has characterized the distinction between
concerted action and aiding and abetting as “of little
significance.” State v. Davis, 301 N.C. 394, 398, 271 S.E.2d
263, 265 (1980). Based on the standards set forth above, we
conclude the trial court properly instructed the jury on both
acting in concert and aiding and abetting. See id.The evidence showed that defendant transported Stephenson
from the scene of an armed robbery in a vehicle located in the
parking lot directly adjacent to the robbery site. Defendant
“pulled off pretty fast” and then proceeded “at a high rate of
speed, careless and reckless” down Raeford and onto Skibo Road.
At the sight of Officer Parker’s patrol car, defendant took
apparently evasive action by cutting across four lanes of
traffic. Despite repeated orders from police to display his
hands, defendant “continued to fumble with his right hand” in
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the vicinity of the vehicle’s center console. Officers
subsequently observed the spoils of the robbery visibly
protruding from the center console. Finally, as noted by the
trial court, the fact that defendant was driving a vehicle
belonging to Stephenson’s girlfriend tends to show that
Stephenson also arrived at the scene in the vehicle, rather than
randomly encountering defendant thereafter and “jump[ing] in the
car.” A reasonable view of this evidence would allow a
determination that defendant was constructively present at the
robbery perpetrated by Stephenson in order to assist Stephenson
by driving the getaway car. See id. (“[T]he evidence in this
case warranted jury instructions on both principles[.]”); see
also Baskin, 190 N.C. App. at 111, 660 S.E.2d at 574 (aiding and
abetting); Combs, 182 N.C. App. at 370, 642 S.E.2d at 496(acting in concert). Defendant’s argument is overruled.
III. Sufficiency of the Evidence
Defendant next claims the trial court erred in denying his
motion to dismiss the charge of robbery with a dangerous weapon
at the conclusion of the evidence.1 While conceding that
Stephenson committed an armed robbery at the Wilco Hess,
1
The court dismissed charges of operating a vehicle without a
license and conspiracy to commit robbery with a dangerous
weapon.
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defendant contends there was no evidence that he was
constructively present at the robbery or that he shared a common
plan or purpose with Stephenson, as required to establish guilt
by acting in concert. Similarly, defendant insists the State
failed to prove that he knowingly aided Stephenson or
contributed to his commission of the robbery.
“Upon review of a motion to dismiss, the court determines
whether there is substantial evidence, viewed in the light most
favorable to the State, of each essential element of the offense
charged and of the defendant being the perpetrator of the
offense.” State v. Lane, 163 N.C. App. 495, 499, 594 S.E.2d
107, 110 (2004). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313
S.E.2d 585, 587 (1984). “[T]he 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. Hill, 365
N.C. 273, 275, 715 S.E.2d 841, 843 (2011) (citation and
quotation marks omitted).
Robbery with a dangerous weapon consists of “(1) an
unlawful taking or an attempt to take personal property from the
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person or in the presence of another, (2) by use or threatened
use of a firearm or other dangerous weapon, (3) whereby the life
of a person is endangered or threatened.” State v. Call, 349
N.C. 382, 417, 508 S.E.2d 496, 518 (1998); see N.C. Gen. Stat. §
14-87 (2013).
As discussed in the previous section, we find substantial
evidence that defendant joined with Stephenson in committing the
robbery and was thus liable for acting in concert with
Stephenson or as his aider and abettor. By driving the getaway
car stationed in a parking lot immediately adjacent to the
robbery, defendant evinced both his constructive presence at the
crime scene and his shared plan or purpose with Stephenson to
commit the offense. See Davis, 301 N.C. at 398, 271 S.E.2d at
265. Defendant’s speedy and reckless manner of flight was
further evidence of his intent to assist Stephenson. See
Baskin, 190 N.C. App. at 111, 660 S.E.2d at 574. Finally,
defendant’s suspicious movements near the vehicle’s center
console, where cash consistent with the amount stolen during the
robbery was found, provided additional circumstantial evidence
of defendant’s knowledge and intent. See Davis, 301 N.C. at
398, 271 S.E.2d at 265. “This evidence—and the reasonable
inferences that may be drawn from it—is relevant evidence that a
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reasonable juror could conclude was adequate to support the
conclusion that Defendant remained in the vicinity of the crime
scene, was willing to render assistance, and did, in fact, aid
in the perpetration of the offense[.]” Marion, ___ N.C. App. at
___, 756 S.E.2d at 69. Accordingly, the trial court properly
denied defendant’s motion to dismiss.
IV. Conclusion
We hold that defendant received a fair trial free from
prejudicial error.
NO ERROR.
Judges BRYANT and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).