State v. Davis

WELLS, Judge.

Defendant first assigns error to the failure of the trial court to grant defendant’s motion to dismiss at the conclusion of the State’s evidence. We believe that the decision of our Supreme Court in State v. Aycoth, 272 N.C. 48, 157 S.E. 2d 655 (1967), is applicable here and compels reversal. In Aycoth, the Court stated that:

“The mere presence of a person at the scene of a crime at the time of its commission does not make him a principal in the second degree; and this is so even though he makes no effort to prevent the crime, or even though he may silently approve of the crime, or even though he may secretly intend to assist the perpetrator in the commission of the crime in case his aid becomes necessary to its consummation.” [Citations omitted.]

“All who are present at the place of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty .... An aider and abettor is one who advises, counsels, procures, or encourages another to commit a crime .... To render one who does not actually participate in the commission of crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator of the crime or by his conduct made it known to such perpetrator that he was standing by to lend assistance when and if it should become necessary.” [Citations omitted.]

State v. Aycoth, supra, at 50-51, 157 S.E. 2d at 657. See also State v. Ross, 44 N.C. App. 323, 260 S.E. 2d 777 (1979).

In the case sub judice, the State’s evidence does not place the defendant in the store at the time of the robbery. Although it places him in the car stopped by the officers and establishes that the stopped car resembled one seen outside the store immediately after the robbery, it does not show that defendant was doing anything to give active encouragement to the robbers or to make it known to them that he was either standing by to give them assistance or that he did give such assistance. Although on voir dire examination of one of the police officers, the State did bring out the fact that defendant was the registered owner of the car stopped by the officers, this evidence was never presented to the jury. No direct evidence relates the nine one dollar bills discovered in the patrol car where defendant had been sitting to defendant or to the money taken in the robbery.

While there is circumstantial evidence from which a reasonable inference might be drawn that defendant was present at the scene of the crime, the State’s evidence does no more than establish his “mere presence.” Aycoth v. State, supra. The State’s evidence is sufficient only to raise a suspicion or conjecture as to the defendant’s participation in the robbery, and this is not sufficient to withstand defendant’s motion to dismiss. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). The trial courterred in failing to grant defendant’s motion to dismiss at the conclusion of the State’s evidence.

Reversed.

Judges Arnold and Hill concur.