State v. Hardison, 243 N.C. App. 723 (Nov. 3, 2015)

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.