State v. Locklear

PHILLIPS, Judge.

Defendant, in writing, timely requested the judge to specially instruct the jury with respect to aiding and abetting, and the refusal to give the instruction is cited as error. This contention is without merit. The State’s evidence and the theory of the trial was not that defendant aided and abetted in the robbery, but that he acted in concert with the other participators. According to the evidence favorable to the State the only correct charge was the one given — for acting in concert. State v. Davis, 40 N.C. App. 68, 252 S.E. 2d 30 (1979). Nor did the defendant’s evidence support the aiding and abetting charge since his evidence tended to show that he had no knowledge of the robbery and thus could not have knowingly aided or abetted in it. Furthermore, the acting in concert charge that was given placed a more onerous burden on the State than would have the aiding and abetting instruction requested by defendant, and thus could not have prejudiced his right to a fair trial.

The defendant’s contention that the evidence was insufficient to support his conviction is likewise without merit. The evidence of record, remarkably similar to that in State v. Davis, supra, clearly meets the standard so well elucidated by Justice Exum in State v. Joyner, 297 N.C. 349, 255 S.E. 2d 390 (1979), which need not be restated here.

The defendant also cites as error the sustaining of the State’s objection to a question asked Bobby Locklear as to whether he felt that the defendant was available to help him in any way in robbing the store. But since the record does not show how the witness would have answered the question the contention is not reviewable. State v. Satterfield, 300 N.C. 621, 268 S.E. 2d 510 (1980). The question was manifestly improper in any event since it asked for the witness’s feeling, which was not an issue in the case.

No error.

Judges Webb and Eagles concur.