Officers investigating complaints of drug activity at a home where the defendant lived with several others discovered methamphetamine, heroin, and cocaine in a small yellow tin in a dresser in the alcove near defendant’s bedroom, an area that the defendant claimed as his personal space. The defendant had allowed officers to search the area, acknowledging that he had used methamphetamine and prescription pills, and that his bedroom likely contained needles and pipes (which were in fact found by the officers), but telling the officers that he did not think they would find any illegal substances. Without the defendant’s knowledge, another resident of the home, Autumn Stepp, had placed the yellow tin, which she referred to as her “hard time stash,” in the dresser before leaving the home earlier that day.

The defendant was charged with possession with intent to sell and deliver methamphetamine, heroin, and cocaine and with maintaining a dwelling house for the sale of controlled substances. He also was indicted for having attained the status of an habitual felon. At the close of the State’s evidence, the trial court dismissed all charges except for simple possession of heroin, methamphetamine, and cocaine. The State requested, and the judge delivered over the defendant’s objection, a jury instruction on the theory of acting in concert in addition to constructive possession. The jury convicted the defendant of simple possession of heroin, methamphetamine, and cocaine and determined that he had attained the status of an habitual felon. The trial court imposed two consecutive sentences of 50 to 72 months of imprisonment. Defendant appealed. 

In a divided opinion, the court of appeals determined that the instruction was proper as it was supported by the evidence. The defendant appealed to the North Carolina Supreme Court.

The state supreme court noted that to support a jury instruction on the theory of acting in concert, the State must produce evidence that the defendant acted together with another who did the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. Mere presence at the scene of the crime is insufficient to support such an instruction. The supreme court agreed with the dissent below that there was no evidence that the defendant acted together with Stepp pursuant to a common plan or purpose; therefore, the supreme court concluded that the trial court erred by giving the instruction. The court reasoned that the discovery of the tin in the defendant’s personal area could indicate his capability to maintain dominion and control over it, thereby supporting a theory of constructive possession, but did not show a common plan or purpose in which the defendant acted in concert with Stepp to protect her “hard time stash.” Likewise, defendant’s admission that he had used illegal drugs on the day of the search and with Stepp in the past could support a theory of constructive possession, but did not demonstrate a common plan or purpose between defendant and Stepp as to the substances in the yellow tin.

Because the State’s evidence supporting the theory of constructive possession was controverted and not exceedingly strong and given the prospect of confusion presented by proceeding on a theory of possession by acting in concert and constructive possession, the court concluded there was a reasonable possibility that had the trial court not instructed on acting in concert a different result would have been reached. The state supreme court thus reversed the decision of the court of appeals, vacated the defendant’s convictions and ordered a new trial.

Justice Newby dissented based on his view that the majority failed to consider the evidence in the light most favorable to the State. Through that lens, he would have found sufficient evidence to support the theory of acting in concert.

In this New Hanover county case, defendant appealed his convictions for two counts of first-degree sexual exploitation of a minor, arguing error in (1) denying his motion to dismiss for insufficient evidence, (2) failing to instruct the jury on second-degree exploitation of a minor as a lesser-included offense, (3) allowing a detective to provide testimony regarding the elements of the charged offense, and (4) mistakenly identifying the charge as “sexual assault” one time during the jury instruction. The Court of Appeals found no error. 

In 2018, defendant and a group of friends attended a Halloween party with the plan to find a girl and have sex with her while filming it. Several members of the group made recordings of defendant and others having sex with a minor girl from the party, and these videos were discovered by law enforcement during an unrelated traffic stop. Defendant filed a motion to dismiss the charges, but the trial court denied the motion, and defendant was subsequently convicted of both counts. 

For (1), defendant argued that there was insufficient evidence that he engaged in the sex with a minor for the purpose of producing material showing their sexual activity, an essential element of the charges. The Court of Appeals explained that defendant was guilty of the offense because he acted in concert with others. Even if defendant was not the principal offender, the court concluded that “substantial evidence demonstrates [defendant] acted in concert with his friends by engaging in the sexual activity which they recorded with the knowledge they were recording it.” Slip Op. at 9.

Moving to (2), the court looked to the statutes creating the relevant offenses, noting that under G.S. 14-190.16(a)(1) “[t]he focus of first-degree sexual exploitation is the direct mistreatment of the minor or the production of material for sale or profit.” Id. at 13. This contrasted with G.S. 14-190.17(a)(1), where second-degree sexual exploitation criminalized the actions of those “involved in the production or after-the-fact distribution of such material,” without the requirement of producing material for sale or gain. Id. The court also pointed to State v. Fletcher, 370 N.C. 313 (2017), where the Supreme Court highlighted that the second-degree sexual exploitation did not involve directly facilitating the involvement of a minor victim. This led the court to conclude that second-degree exploitation of a minor was not a lesser-included offense. 

In (3), defendant argued that the officer’s testimony instructed the jury that merely being filmed having sex constituted a violation of G.S. 14-190.16(a)(1), and this testimony confused the jury as to the statute’s requirement that defendant must have intent to produce material. The court disagreed, pointing out that the testimony was during cross-examination related to the questioning of one of the friends who attended the party, and the officer “simply answered why he did not feel compelled to question [one of the friends] regarding the filming of the sexual activity, and he gave a logical, albeit legally incorrect, response.” Id. at 16. The court determined this response made sense in context, and was not improperly instructing the jury as to the elements of the offense. 

Arriving at (4), the court explained that the trial court’s mistaken statement that the offense was “sexual assault” only occurred once, during the instruction related to acting in concert. This was inadvertent, and the trial court provided the correct instruction on the elements of first-degree exploitation of a minor, as well as the correct charge when providing a second instruction on acting in concert where the trial court did not make the mistake. As a result, the court found no danger that the jury was confused as to the charge. 

A longstanding feud and several prior altercations culminated in the defendant and an accomplice ambushing two victims as they were driving away from the home of a woman who helped set the victims up. As the victims’ vehicle left the woman’s home and approached an intersection, the accomplice was standing in the middle of the road and began shooting at the driver’s side of the victims’ car. The defendant was also present and shot at the passenger side of the car.  The diver of the vehicle was killed, but the passenger survived unharmed. The defendant was identified as a suspect, interviewed, and arrested. In the defendant’s first interview with police, he claimed that he had been at home all day when the murder occurred. In his second interview, the defendant admitted he lied in his first interview and admitted that he was present at the scene and fired at the car, but maintained that he was firing in self-defense and not aiming at the vehicle.

The defendant was charged with first-degree murder of the driver, attempted murder of the passenger, conspiracy to commit first-degree murder of the passenger, and discharging a firearm into an occupied vehicle in operation. Following a jury trial, the defendant was convicted of all charges. The jury found the defendant guilty of murder based on both lying in wait and felony murder, but acquitted as to malice, premeditation, and deliberation. Judgment on the discharging a firearm offense was arrested, and the defendant was sentenced to life in prison.

On appeal, the defendant argued that the evidence at trial was insufficient to support his convictions for murder, attempted murder, or conspiracy. The Court of Appeals disagreed, and held that there was sufficient evidence to support all the charges. Even though the state offered the defendant’s initial exculpatory statement into evidence, that statement was inconsistent with other evidence of the defendant’s guilt, such as his admissions to being at the scene and firing a gun, and forensic evidence that showed he fired 13 shots at the passenger side of the vehicle. The bullet that killed the driver came from the other side of the car, but there was sufficient evidence to show that the defendant and the other shooter were acting in concert and engaged in the felony of discharging a firearm into an occupied vehicle. Evidence cited by the court included the longstanding feud that led to the murder, the close friendship between the defendant and the other shooter, incriminating text messages regarding their plan, the coordinated nature of both the set-up to bring the victims to a specific location and the resulting ambush, and the assailants’ joint flight afterward. Based on all the evidence, a reasonable juror could conclude that the two shooters were lying in wait for the victims, and they were acting in concert when they opened fire on the occupied vehicle. Although the passenger in the vehicle survived, the court held that the evidence was likewise sufficient to find that the defendant and his accomplice intended to murder the passenger, made an agreement to do so, and performed an overt act to carry out that intent, thus supporting the convictions for both attempted murder and conspiracy.

The defendant, the former District Attorney for Person and Caldwell Counties, was tried for obtaining property by false pretenses, conspiracy to obtain property by false pretenses, aiding and abetting obtaining property by false pretenses, three counts of obstruction of justice, and failure to discharge the duties of his office. The jury acquitted on one count of felony obstruction and the conspiracy count but convicted on the remaining charges (with the exception that the jury returned a verdict of guilty of misdemeanor obstruction on one of the remaining felony obstruction counts). The trial court subsequently arrested judgment on the aiding and abetting obtaining property conviction. The charges stemmed from a scheme whereby the defendant and another elected District Attorney hired each other’s wives to work in each other’s offices. Under this arrangement, both wives were wrongfully paid for working hours that they had not actually worked.

(1) There was insufficient evidence to support the conviction for obtaining property by false pretenses. The State alleged that the defendant acted in concert with the employee who improperly submitted work hours. Acting in concert requires the actual or constructive presence of the defendant at the scene of the crime. “A person is constructively present during the commission of a crime if he is close enough to provide assistance if needed and to encourage the actual execution of the crime.” Slip op. at 15 (citation omitted). Although the employee at issue worked for the defendant, she was allowed to work at her husband’s office in another district. The defendant was therefore not physically present when the fraud of reporting unworked hours occurred. The State argued that the defendant was constructively present, pointing out that the fraudulent hours were approved by a supervisor at the defendant’s direction. The court rejected this argument, noting that the approval of hours occurred at a much later time than when the hours were submitted. While “actual distance is not determinative, . . . the accused must be near enough to render assistance if need be and to encourage the actual perpetration of the crime.” Id. at 19 (citation omitted). Here, the defendant was not in the same county as the employee who submitted the fraudulent hours at the time they were submitted. The fact that the employee could have called the defendant for help with the crime at the time was not enough to satisfy the constructive presence element. “To hold the theory of acting in concert would be satisfied merely where ‘remote assistance’ is possible would broadly expand the universe of criminal conduct under this theory.” Id. at 22. Thus, the defendant’s conviction for acting in concert to obtain property by false pretenses was vacated for insufficient evidence [although the trial court was instructed on remand to reinstate the judgment previously arrested for aiding and abetting obtaining property].

(2) There was also insufficient evidence of felony obstruction of justice. That offense requires the State to prove that the defendant actually impeded the administration of justice. The indictment alleged that the defendant made false statements to an SBI investigator concerning the employee. One of the defendant’s statements at issue was “at most misleading, and not false,” as it was a misrepresentation by omission and not affirmatively a false statement as the indictment charged. There was sufficient evidence that another of the defendant’s statements to the investigator was false, but there was no evidence that this statement actually obstructed the course of the investigation. The defendant responded truthfully to some of the investigator’s questions about the employee, which actually facilitated the investigation. The defendant was never directly asked whether the employee was in fact performing work for the defendant. “To support a conviction for obstruction of justice, the State must establish substantial evidence for every element of the crime, including that the act in question ‘obstructed justice[.]’” Id. at 27 (citation omitted). The motion to dismiss for felony obstruction of justice therefore should have been granted, and that conviction was vacated. 

(3) The defendant argued that the trial court improperly excluded testimony regarding an email sent by an assistant to the Administrative Office of the Courts at the defendant’s direction. At trial, the defendant argued that the email fell within the business records exception to the prohibition on hearsay, that the email was simply not hearsay, and that the State opened the door to the admission of the email through its questions of the witness. On appeal, the defendant argued that the email should have been admitted because it was a directive to his employee, pointing to cases holding that commands are not hearsay because they are not offered for the truth of the matter (rather, they are offered to show that the command was given). It was not apparent from context that the defendant was arguing for the email’s admission as a command, and the parties and trial court did not address that argument. Since this argument was not made at the trial level, it was not preserved and was waived on appeal.

(4) The trial court did not commit plain error by failing to instruct the jury on the specific misrepresentations for the obtaining property by false pretenses offenses. “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 34 (citation omitted). The defendant argued that the evidence showed alternative false representations that the jury could have improperly relied on in rending its verdict of guilty for the two offenses. Reviewing the evidence, the court rejected this argument. “We hold the trial court did not err, nor plainly err, in failing to give an instruction about the misrepresentation alleged in the indictment.” Id. at 37.

In this drug case, the trial court rejected the defendant’s argument that the evidence was insufficient to support an acting in concert instruction. Reviewing the evidence, the court rejected the defendant’s argument that it showed only mere presence.

The evidence was sufficient to sustain a charge of assault with a deadly weapon inflicting serious injury based on a theory of acting in concert. It was undisputed that the victim sustained serious injury; the only real issue was whether the evidence was sufficient to allow a reasonable inference that the defendant was a perpetrator of the crime. Another individual, Mr. Robinson, shot the victim. The evidence showed that the defendant and the victim’s wife drove to the victim’s residence, where the victim and his wife engaged in a dispute over custody of their children until the police arrived and required the defendant and the victim’s wife to leave without the children. The next evening the defendant drove his vehicle, with Robinson and the victim’s wife, back to the victim’s residence, carying with them firearms, bulletproof vests, and walkie-talkie radios that were turned on and set the same channel. The vehicle was waiting in the victim’s apartment parking lot when he arrived home. Robinson, who did not know the victim, shot the victim and asked him if he wanted to die. The defendant assisted Robinson in restraining the victim, placed a handcuff on one of the victim’s wrists, tried to cuff both of the victim’s wrists, searched the victim’s pockets, and escorted the victim’s children from his apartment to the vehicle where the victim’s wife was waiting. After neighbors found the victim bleeding from gunshot wounds, the defendant sped away from the scene with the victim’s wife, Robinson, and the children. This evidence was sufficient to sustain and acting in concert charge. 

Reversing the defendant’s convictions for contaminating a public water system, the court held that because the defendant was not constructively present, the evidence was insufficient to support criminal liability under the doctrine of acting in concert. The evidence showed that the defendant offered to pay another person to intentionally break county water lines so that the defendant’s company, which was under contract with the county to repair the lines, would be paid by the county for the necessary repairs. The defendant was never present when the accomplice broke the water lines. The court held that the defendant “was not physically close enough to aid or encourage the commission of the crimes and therefore was not actually or constructively present—a necessary element of acting-in-concert liability.” The court rejected the State’s argument that the defendant was constructively present because she planned the crimes, was accessible if needed by telephone, and later was at the crime scene to repair the broken water lines. In this respect, the court held, in part, that “one cannot be actually or constructively present for purposes of proving acting in concert simply by being available by telephone.” The court noted that the evidence would have supported a conviction based on a theory of accessory before the fact, but the jury was not instructed on that theory of criminal liability, nor was the defendant charged with other offenses, such as conspiracy, that apply to those who help plan a criminal act. 

In an assault inflicting serious injury case, the evidence was sufficient to show that the defendant acted in concert with other assailants and thus that he was guilty of the offense even if the injuries he personally inflicted did not constitute “serious injury.”

In a case involving charges of obtaining property by false pretenses arising out of sales to a pawn shop in which another person told the shop that the items were not stolen, the evidence was insufficient to show that the defendant was acting in concert. Assuming that the State sufficiently established the other elements of acting in concert, there was no evidence that the defendant was either actually present or near enough to render assistance as needed to his alleged accomplice.

The trial court did not err by dismissing charges of felony breaking or entering and felony larceny. The State presented evidence that an unknown man, who appeared to be concealing his identity, was seen walking around the victim’s yard carrying property later determined to have been taken from the victim’s home. The man fled when he saw officers and was never apprehended or identified. The defendant was also seen in the yard, but was never seen entering or leaving the home or carrying any stolen property. Although the defendant also fled from officers, no evidence linked him to the unknown man. The defendant’s presence in the yard and his flight was insufficient evidence of acting in concert.

In a case in which there was a dissenting opinion, the court held that there was sufficient evidence that the defendant acted in concert with another to commit a robbery. The evidence showed that he was not present at the ATM where the money was taken, but was parked nearby in a getaway vehicle.

The court reversed a unanimous, unpublished decision of the Court of Appeals in this first-degree sexual offense case, holding that the trial court did not err by giving a disjunctive jury instruction. One of the factors that can elevate a second-degree sexual offense to a first-degree sexual offense is that the defendant was aided and abetted by one or more other persons; another is that the defendant used or displayed a dangerous or deadly weapon. Here, the trial court gave a disjunctive instruction, informing the jury that it could convict the defendant of the first-degree offense if it found that he was aided and abetted by another or that he used or displayed a dangerous or deadly weapon. Where, as here, the trial court instructs the jury disjunctively as to alternative acts which establish an element of the offense, the requirement of unanimity is satisfied. However, when a disjunctive instruction is used, the evidence must be sufficient under both theories. In this case it was undisputed that the evidence was sufficient under the dangerous or deadly weapon prong. The defendant contested the sufficiency of the evidence under the aiding and abetting prong. The court found the evidence sufficient, holding that the Court of Appeals erred in concluding that actual or constructive presence is required for aiding and abetting. As the Court stated in State v. Bond, 345 N.C. 1 (1996), actual or constructive presence is no longer required to prove aiding and abetting. Applying that law, the court held that although the defendant’s accomplices left the room before the defendant committed the sexual act, there was sufficient evidence for the jury to conclude that the others aided and abetted him. Among other things, two of the accomplices taped the hands of the residents who were present; three of them worked together to separate the sexual assault victim from the rest of the group; one of the men grabbed her and ordered her into a bedroom when she tried to sit in the bathroom; and in the bedroom the defendant and an accomplice groped and fondled the victim and removed her clothes. Most of these acts were done by the defendant and others. The act of taping her mouth shut, taping her hands behind her back, moving her into the bedroom, removing her clothing and inappropriately touching her equate to encouragement, instigation and aid all of which “readily meet the standards of . . . aiding and abetting.” The court rejected the defendant’s argument that the evidence was insufficient because he was the only person in the room when the sex act occurred.

In this Cleveland County case, defendant appealed his conviction for aiding and abetting possession of a firearm by a felon, arguing a fatally defective indictment and error in dismissing his motion to dismiss for insufficient evidence. The Court of Appeals disagreed on both points and found no error.

Detectives in an unmarked vehicle observed a black pickup truck swerve left of the center line several times while driving, and initiated a traffic stop. Defendant was seated in the passenger seat of the truck when the detectives approached. The driver of the vehicle was known to be a felon by the detectives, and they conducted Terry frisks of defendant and the driver of the truck, finding .32 caliber ammunition in the pocket of the driver. After finding the ammunition, the detectives searched the truck, finding a handgun inside the glovebox and another hidden under the center seat, as well as magazines and ammunition around the vehicle.

Reviewing defendant’s challenge to the indictment, the Court of Appeals first explained the necessary elements of aiding and abetting another person in a crime, and the then the necessary elements of possession of a firearm by a felon. Turning to the text of the indictment, the court found all the necessary elements for the crime, overruling defendant’s argument.

The court next looked to the sufficiency of the evidence, explaining that defendant argued no proof of his intent to commit the crime, even though the elements of the offense do not include an intent requirement, because the indictment referenced his knowledge of the driver’s prior felony conviction. Looking at the evidence in the record, the court found sufficient evidence that defendant provided a firearm to the driver of the vehicle, and that defendant was aware of the driver’s prior felony conviction. This led the court to conclude sufficient evidence existed to support the conviction.